This Software and Services Agreement (the “Agreement”) is entered into as of the (the “Effective Date”) between DirectKey (“DirectKey LLC”), a company with its principal place of business at4213, 1603 Capitol Avenue, Suite 413 Cheyenne Laramie 82001, USAand You, either an individual or an entity (“You” or “Company”).
BY ACCEPTANCE OR INDICATION OF ACCEPTANCE OF THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILIZING THE SERVICES (DEFINED BELOW), YOU AGREE TO THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND SOFTWARE SOLUTION GROUP LLC AND SETS FORTH THE TERMS THAT GOVERN THE LICENSE PROVIDED TO YOU HEREUNDER. IF YOU ENTER INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY THEN YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. ANY MODIFICATIONS, CHANGES, ADDITIONS, OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES.
DirectKeymay modify this Agreement from time to time and will post the most up-to-date version of software on its website. Your continued use of the Services and Software following modification to the updated Agreement constitutes your consent to be bound by the same.
In this agreement all capitalized terms, which are not otherwise defined herein, will have the meanings as defined below;
Affiliatesmean any entity (i) that controls a party; (ii) that is controlled by a party; or (iii) that is under common control with an entity that also controls a party. Control includes direct or indirect control, including any subsidiary, holding company or operating division of the respective party.
Authorized Usersmean any person to whom the Client has granted access to the Services.
Confidential Informationmeans non-public proprietary information other than Trade Secrets, of value to its owner, and any data or information defined as a Trade Secret but which is determined by a court of competent jurisdiction not to be a trade secret under applicable law.
Agreementmeans the Software and Services Agreement, any applicable Product Addendum, the Data Processing Addendum, and the Order Form.
Client(s)means if you are an MSP, your customers.
Datameans your data, files, or information, including data, files, or information that includes Personal Data, accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your User’s use of the Services or Software.
Devicesmean (whether physical or virtual) a server, computer, mobile device, system, workstation, or endpoint upon which or through which the Services are used and/or on which the Software is installed.
Documentationmeans the official user documentation prepared and provided by DirectKey to You on the use of the Services or Software (as updated from time to time). (For the removal of doubt, any online community site, unofficial documentation, videos, white papers, related media, or feedback do not constitute Documentation)
MSPmeans a managed service provider.
Order Formmeans the DirectKey order page, product information dashboard, or other DirectKey ordering document that specifies Your purchase of the Services, pricing, and other related information.
Personal Datameans any information that can be used to identify an individual as that term is defined under General Data Protection Regulation (GDPR).
Proprietary Informationmeans, collectively and without regard to form, any third-party information that either party has agreed to treat as confidential, and information regulated by state or federal law concerning disclosure or use, Confidential Information, and Trade Secrets
Servicesmean the products and software services, provided by DirectKey to You including any application programming interface that accesses functionality.
Softwaremeans the object code versions of any downloadable software provided by DirectKey solely to access the Services, including but not limited to an agent, together with the updates, new releases or versions, modifications, or enhancements, owned and provided by DirectKey to You pursuant to this Agreement.
Supportmeans the support or standard maintenance as provided by SSD LLC or its designated agents as outlined in this Agreement if applicable to You.
Usermeans an individual authorized by You to use the Services, Software, and Documentation, for whom You have purchased a subscription or to whom You have supplied a user identification and password. User(s) may only include Your employees, consultants, contractors, and if applicable, Your Clients.
Virusesmean any malware, spam, malicious code, trojan horses, or other harmful technology
PROVISION OF SERVICES.
Services License.Upon compliance with the agreement and payment of subscription fees, you will receive a limited, non-exclusive, non-transferable license to access, use, and install (if applicable) the Services, Software, and Documentation during the defined term. DirectKey may deliver the Services or Software to You with the assistance of its Affiliates, licensors, agents, and service providers.
Up-to-date or Modified ServicesDirectKey holds the right to update or modify the Services or Software or provide alternative Services or Software during the term as defined herein, to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third-party program. The reason for such updates or modifications to the Services or Software or provisions of alternative Services or Software is not to intentionally or materially reduce the level of performance, security, functionality, or availability of the Services or Software during the Term.
Maintenance and Support ServicesDuring the term, DirectKey will provide the support of the general help desk and general maintenance respecting the products and services provided by DirectKey under this agreement including support for installation, software and services updates or upgrades, and system tuning if required to accommodate changes to system or components.
Acknowledgement and ProcedureYou agree that there are some errors or problems respecting the software and services provided by DirectKey which can not be fixed or controlled or are beyond the capacity or ability of DirectKey to fix. In such case, the DirectKey shall do its best possible efforts to identify the problems and correct them but if the problems or errors are not caused by acts or omissions of DirectKey then shall not be responsible for them.
Procedure: If you identify an error or malfunction in the software and services provided to you, then (i) you promptly notify the problem to DirectKey by written notice and (ii) if the error or problem is due to act and omission of DirectKey than it shall be the sole obligation of DirectKey to use reasonable effort to correct them and (iii) advice you the implementation of error correction and (iv) with respect to a critical problem that is not resolved within a specified time; (a) assign a data analyst to investigate the error; (b) inform about the status until resolution and (c) use reasonable efforts for correction of errors on urgent basis.
Evaluation or Beta License.If the Services, Software, and Documentation are provided to You for evaluation, beta, or release candidate purposes, DirectKey grants You a limited, nonexclusive, non-transferable evaluation license to use the Services, Software, and Documentation solely for evaluation prior to purchase or implementation (an “Evaluation License”) which will not be for production use. The Evaluation License shall terminate on the end date of the predetermined evaluation period or immediately upon notice from DirectKey in its sole discretion. Notwithstanding any other provision contained herein, the Services, Software, and Documentation provided pursuant to an Evaluation License are provided to You “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent, such terms conflict with this Section, all other terms of this Agreement shall apply to the Services, Software, and Documentation licensed under an Evaluation License.
New FunctionalityDirectKey may introduce new functionality into its software and services which you can acquire by the payment of additional fees as specified by DirectKey. Acquisition of this offer will be discretionary.
LICENSE RESTRICTIONS; OBLIGATIONS
License Restrictions. You will not (i) reproduce, republish, copy, upload, post, or transmit the Services, Software, or Documentation (except for backup or archival purposes) (ii) permit ,provide, or it make available to anyone other than authorized Users to use or access the Services, the Software or Documentation (iii) sell, resell, rent, lease, transfer, distribute, or otherwise transfer rights to the Services, Software, or Documentation unless as authorized in this Agreement (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Services, Software or Documentation; (v) create, market, distribute add-ons or enhancements or incorporate into another product the Services or Software without prior written consent of DirectKey (vi) use the Services or Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights (ix) use the Services or Software to violate any rights of others; (x) use the Services or Software to store or transmit malicious code, Trojan horses, malware, spam, viruses, or other destructive technology (xi) interfere with, impair, or disrupt the integrity or performance of the Services or any other third party’s use of the Services; (xii) use the Services in a manner that results in excessive use, bandwidth, or storage; or (xii) alter, circumvent, or provide the means to alter or circumvent the Services or Software, including technical limitations, recurring fees, or usage limits.
Your Obligations.By acceptance of this agreement, you agree and acknowledge that you will (i) comply with terms of this agreement and will be solely responsible for Your and Your Users’ acts and omissions, and if You become aware of any violation, You will immediately terminate the offending party’s access to the Services, Software, and Documentation and notify DirectKey (ii) comply with all applicable local, state, federal, and international laws in connection with the use of DirectKey Services (iii) ensure the Software is installed on a supported platform as prescribed in the Documentation, establish a constant internet connection and electrical supply for the use of the Services, and the Services and Software are used only with public domain or properly licensed third party materials; (iv) install the latest version of the Software on Devices accessing or using the Services; (v) process Your Data and legally able to provide Your Data to DirectKey and its Affiliates, including obtaining appropriate consents or rights for such processing, and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the Services and Software and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; and (vi) keep your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the Services, Software and Documentation.
If You are an MSP, you further acknowledge, agree, and warrant that: (i) You have sufficient technical infrastructure, knowledge, and expertise to perform Your duties for Your Clients; (ii) You will provide all sales, problem resolution, and support services to Your Clients; (iii) You will be responsible for billing, invoicing, and collection for Your Clients; and (iv) You will operate at Your own expense and risk under Your own name as an MSP.
DirectKey Ownership of intellectual property. Except expressly granted limited rights by the DirectKey to you, you agree and acknowledge that all rights, title, interest arising out of or relating to copyright, trademark, patent, trade secret, intellectual property (including without limitation algorithms, business processes, improvements, discoveries and inventions enhancements, modifications, derivative works, information collected and analyzed in connection with the Services) and other proprietary rights, services, the software, and documentation exclusively belong to DirectKey or its agents, suppliers or service providers. Use of “purchase” in conjunction with licenses of the Services, Software, and Documentation shall not imply a transfer of ownership. All rights, title, and interest in and to content, which may be accessed through the Services or the Software belong to the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including the use of the same. DirectKey is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations, or other feedback provided by You or Your Users relating to the Services or Software.
DirectKey Intellectual Property Protection. You will not yourself nor permit any other party to:
(i) Disassemble, decompile, decrypt, reverse engineer, or in any way attempt to discover or reproduce source code for any part of the Services or Software; adapt, modify, or prepare derivative works or use any DirectKey Data Man DLLs to create any computer program or other material that replicates, performs, or utilizes the same or substantially similar functions as the Services or Software.
(ii) By any means sell, transform, resell, translate, assign, pledge, mortgage, encumber, or otherwise dispose of any DirectKey Intellectual Property or any of the rights or obligations granted or imposed on purchaser hereunder. In no case shall this Agreement, or any rights or privileges arising out of it, be an asset of the purchaser under any bankruptcy, insolvency, or reorganization proceedings, or in any other manner whatsoever.
Non-Disclosure. By accepting this agreement, you agree and acknowledge that any information or Services provided byDirectKeyto you represent Proprietary Information ofDirectKey, and the source code that underlies the Services is a Trade Secret and confidential information which is owned by or belongs toDirectKey. You agree (i) to hold the Proprietary Information confidential; (ii) not to, directly or indirectly, copy, distribute, manufacture, duplicate reproduce, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party; (iii) not to make use of the Proprietary Information other than purposes permitted by this Agreement; and (iv) to disclose the Proprietary Information only to their respective representatives requiring such material for the effective performance of this Agreement and who have undertaken a written obligation of confidentiality and limitation of use consistent with this Agreement.
Proprietary Information shall not include information that is (1) already known to the receiving party free of any restriction at the time it is obtained from the disclosing party; (2) subsequently learned by the receiving party from an independent third-party free of any restriction and without breach of this Agreement; (3) publicly available or becomes available through no wrongful or illegal act of either party (4) independently developed by the receiving party without reference to any Proprietary Information of the disclosing party; or (5) is required to be disclosed according to a requirement of a governmental agency or law so long as the parties provide each other with timely written prior notice of such requirements. Each party hereto shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with this Agreement, and shall exercise due care to monitor and ensure compliance with this Agreement. The nondisclosure and confidentiality obligations set forth in this Section shall survive termination of this Agreement for any reason and shall remain in effect with respect to Trade Secrets for as long as the owner of such information is entitled to protection thereof and with respect to Confidential Information for a period of two (2) years after termination hereof.
Ownership of Your Data.Ownership of all rights, titles, and interests in and to all copyright, trademark, patent, trade secret, intellectual property, and other proprietary rights in and to Your Data belongs to you. DirectKey’S right to access and use the same are limited to those expressly granted in this Agreement.
Reservation of Rights All rights or licenses relating to software and services not expressly or exclusively granted under this Agreement are reserved for DirectKey.
Term of agreement.Unless terminated earlier by either party, this Agreement will commence on the Effective Date and will continue until the end of the term specified hereinbefore (the “Initial Term”). By this agreement, DirectKey is authorized to renew the applicable Services upon the expiration of the Initial Term automatically (each aRenewal Term, and collectively with the Initial Term, theTerm). The Renewal Term will be of the same length as the Initial Term unless otherwise provided.
Rights of Termination.Either party may exercise the right to terminate this Agreement prior to the beginning of the Renewal Term by thirty days (30) days written notice to the other party prior to the end of the then-current term. Either party may terminate this Agreement and the rights granted herein upon the material breach by another party of the provisions of this Agreement and fails to cure within thirty (30) days after receiving written notice of such breach. Termination of this Agreement does not constitute either party’s exclusive remedy for breach or non-performance by the other party and, subject to the other provisions of this Agreement, each party is entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
Suspension of ServicesDirectKey reserves the right to suspend the delivery of services if you fail to pay timely the amount due by this agreement even after the notice of nonpayment. DirectKey will not be liable to the user or to any third party for any liabilities, claims or expenses arising from or relating to the suspension of services resulting from nonpayment by the user.
Effect of TerminationUpon termination of this Agreement for any reason or expiration of term, the DirectKeyshall immediately cease to provide its services, and (1) all usage rights and licenses granted to user hereunder shall terminate (2) DirectKeyshall terminate the user’s access to the Services; (3) the User shall immediately cease use of the Services (including all Software) in any manner whatsoever, and delete and return all copies of Software, Documentation and other related materials toDirectKey; and (4) all payments owed to either party shall be immediately due and payable. ShouldDirectKeybecome insolvent and cease to conduct business in the ordinary course without its obligations hereunder being assumed by a third party.
FEES AND PAYMENT; TAXES.
Fees and Payment. All orders placed will be considered final. Fees for the acquisition of services will be due and payable as set prescribed on the Order Form. Unless otherwise provided, fees shall be at DirectKey then-standard rates at the time of invoice or, if applicable, as set forth in the Order Form. If You fail to pay timely the amount due, DirectKey shall be entitled to exercise its sole or exclusive discretion, to (i) suspend the access to the Services until the fulfillment of pending obligations; (ii) charge You on the interest rate designated by DirectKey at the time of invoice; and/or (iii) terminate this Agreement. if applicable, you will be charged additional fees if You exceed the license capacity designated in Your Order Form, which will be reflected in Your invoice. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Payments or fees shall be non-refundable.
DATA; PROTECTION OF YOUR DATA.
Your Data.You agree and acknowledge that SG LLC and its Affiliates hold the right to remove or delete Your Data or any other personal data, information, or content of data or files used, stored, processed, or otherwise by You or Your Users if found or believes to be or is: (a) illegal, unethical, threatening, harmful, libelous, abusive, vulgar, pornographic, or obscene; (b) a Virus; (c) used to spam, chain letters, or dissemination of objectionable material; (d) used to cause offense, defame or harass; or (e) infringing the intellectual property rights or any other rights of any third party.
You and Your Users are responsible for the protection and maintaining backups of Your Data directly or indirectly processed using the Services and Software and DirectKey is not responsible for any loss due to exportation, the failure to store, or the corruption of Your Data. You agree that DirectKey and its Affiliates will process configuration, performance, usage, and consumption data about You and Your User’s use of the Services and Software to assist with the necessary operation and function of the Services and Software and to improve and keep up to date DirectKey products and services and Your and Your Users’ experience with DirectKey and its Affiliates pursuant to the DirectKey Privacy Notice. You represent and warrant that You and Your Users, regarding the processing of Personal Data hereunder, you shall be deemed the data controller (and DirectKey, the data processor) and shall determine the purpose and manner in which such Personal Data is, or will be processed.
Protection of Your Data.Each party shall comply with its respective obligations under applicable data protection laws. Each party shall maintain appropriate administrative, physical, technical, and organizational measures that ensure an appropriate level of security for the protection of Confidential Information and Personal Data. DirectKey and its Affiliates will process Personal Data following the Data Processing Addendum. You are responsible for ensuring that the security of the Services is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.
As used in this Agreement,Confidential Informationmeans any nonpublic information or materials disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects that the disclosing party identifies as confidential or proprietary. For clarity, Confidential Information includes Personal Data, and DirectKey Confidential Information includes the Services, Software, and any information or materials relating to the Services, Software (including pricing), or otherwise. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party.
The receiving party will: (i) hold the disclosing party’s Confidential Information in strict confidence and use reasonable care and caution to protect the same; (ii) restrict disclosure of such Confidential Information to those employees or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of Confidential Information substantially similar to those of this Agreement; and (iii) use Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein.
The restrictions will not apply to Confidential Information, excluding Personal Data, to the extent it (i) is (or through no fault of the recipient, has become) generally available to the public; (ii) was lawfully received by the receiving party from a third party without such restrictions; (iii) was known to the receiving party without such restrictions prior to receipt from the disclosing party; or (iv) was independently developed by the receiving party without breach of this Agreement or access to or use of the Confidential Information.
The recipient may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving party will provide to the disclosing party prompt notice, where permitted, of such order and will take reasonable steps to contest or limit the steps of any required disclosure. The parties agree that any material breach will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to which the applicable party may be entitled.
THE SERVICES, SOFTWARE, DOCUMENTATION, AND ALL OTHER PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING THIRD-PARTY HOSTED SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DirectKey DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, SECURITY, LOSS OR CORRUPTION OF YOUR DATA, CONTINUITY, OR ABSENCE OF DEFECT RELATING TO THE SERVICES, SOFTWARE, DOCUMENTATION, ANY OTHER PRODUCT OR SERVICES, OR RESULTS OF THE SAME PROVIDED TO YOU UNDER THIS AGREEMENT. DirectKey DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT DEFECTS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
EACH PARTY SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH YOU MAY UTILIZE THE SERVICES AND SOFTWARE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS AGAINST THE OTHER PARTY WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SERVICES.
DirectKey Indemnification.DirectKey will indemnify, protect, defend, and hold You harmless from any third party claim brought against You that the Services, as provided by DirectKey, infringe or misappropriate any U.K. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Services by You confirm the Agreement and Documentation; (ii) the infringement is not resulted by modification or alteration of the Services; and/or (iii) the infringement was not caused by a combination or use of the Services with products not supplied by DirectKey. DirectKey’s indemnification obligations are contingent upon You only on : (i) immediate or prompt notification of the claim in writing to DirectKey; (ii) granting DirectKey sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing reasonable assistance, information and authority to DirectKey, required for the defense and settlement of the claim.
Your Indemnification.You agree that you will indemnify, defend, protect and hold harmless DirectKey and its Affiliates, and its directors, employees, and agents from and against any claims arising out of or due to (i) Your Data; (ii) Your (or Your User’s) breach of this Agreement; (iii) Your (or Your User’s) misuse of the Services, Software, or Documentation; or(iv) Your (or Your User’s) use of the Services, Software, or Documentation in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL DirectKey AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, OR AGENTS HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE AGGREGATE LIABILITY OF DirectKey AND ITS AFFILIATES, DIRECTORS, EMPLOYEES, AND AGENTS, AND THE SOLE REMEDY AVAILABLE TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, SOFTWARE, OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO DirectKey UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO TERMINATION.
You may be granted access to third-party programs through the Services or Software, or third-party programs may be bundled with the Services or Software. These third-party software programs are governed by their own license terms, which may include open source or free software licenses, and those terms will prevail over this Agreement as to Your use of the third-party programs. Nothing in this Agreement limits Your or Your Users’ rights under, or grants You or Your User rights that supersede, the terms of any such third-party program.
During the Term, DirectKey shall be responsible to provide You with support and assistance in accordance with the applicable support terms and conditions, if you agree to: (i) promptly notify or contact DirectKey with all problems in connection with the Services or Software; and (ii) cooperate with and provide all relevant information and implement any corrective procedures that DirectKey requires to provide Support. DirectKey shall have no responsibility or obligation support you for problems caused by or arising out of the following: (i) modifications or changes to the Software or Services by you; (ii) use of the Software or Services in contravention with the Agreement or Documentation; or (iii) problems arising due to third-party products that are not authorized in the Documentation or from third-party products authorized in the Documentation, if solely arising from such third-party products.
Entire Agreement. This Agreement constitutes the entire agreement and represents the entire understanding and agreement between the parties. This agreement expressly supersedes and terminates all previous discussions, communications, agreements and understanding, written or oral, relating to the subject matter thereof. Any subsequent amendments and/or additions thereto are effective only if in writing and signed by both parties. No employee or agent of the party is authorized to make any additional representations or warranties related to the Services provided hereunder.
Assignment.Without the prior written consent of DirectKey, you will not delegate or assign any of your rights or duties under this agreement, whether voluntarily or involuntarily, by consolidation, dissolution, merger or operation of law or in any other way.
Binding Effect.Subject to the foregoing limitation on assignment, this Agreement is binding upon and inures to the benefit of the successors and assigns of the respective parties hereto.
Governing Law and Jurisdiction.This Agreement is to be governed and interpreted in accordance with the laws of England without regard to its conflicts of laws. Each party agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.
Headings. Headings of paragraphs in this Agreement are inserted for convenience only and are in no way intended to limit or define the scope and/or interpretation of this Agreement.
Waiver.No waiver shall be effective unless it is made in writing and signed by the waiving party. The failure of DirectKey at any time to require performance by Client of any provision hereof is not to affect in any way the full rights of DirectKey to require such performance at any time thereafter, nor is the waiver by DirectKey of a breach of any provision hereof to be taken or held to be a waiver of the provision itself or any future breach.
Independent Contractors. The parties of this agreement have the status of independent contractors and nothing in this Agreement nor the conduct of parties is to be construed to create a partnership, joint venture, or agency relationship between parties. Except as provided in this agreement, neither party will be responsible for the acts and omission of the other party or the other party’s personnel.
Severability.If any part, term, or provision of this Agreement is held to be invalid, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this agreement, the remainder of the agreement shall remain in full force and the validity of the remaining portions or provisions are not to be affected thereby.
Notices.Except otherwise provided in this agreement, notices given pursuant to this Agreement shall be in writing and shall be deemed to have been given (a) when delivered personally or sent by a nationally recognized courier service or; (b) by registered or certified first-class mail or (c) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section. Notice given by personal service is to be deemed effective on the date it is delivered to the addressee, and notice mailed is to be deemed effective on the fifth (5th) day following its placement in the mail addressed to the addressee.
Use of Name and Logo. During the term of this agreement, you will grant to DirectKey the right (a)to use your name and logo on DirectKey’s website and/or customers list and; (b) to issue press releases announcing the relationship and identifying the services purchased by you provided that such press releases shall be subject to your written approval which shall not be unreasonably withheld.
Force Majeure. DirectKey shall not be liable for and shall be excused from failure to perform or delay in performing all or any part of its obligations under this Agreement if such failure or delay is directly or indirectly caused by the factors or events reasonably beyond the control of DirectKey, whether or not foreseeable, including, without limitation, acts of God, act of public enemy, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority.
Execution in Counterparts and by Facsimile.The Agreement may be executed in counterparts and each of such counterparts will be deemed as an original document and all of such counterparts if taken together will constitute the same agreement. you agree that the Agreement executed and delivered by facsimile will have the same force and effect as delivery of an original document with original signatures and may use such facsimile signatures as evidence for the execution and delivery of this Agreement.
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