This Master Services Agreement ("MSA" or "Agreement") is entered into between Ghostpoint Security ("GHOSTPOINT SECURITY") and the subscribing party ("SUBSCRIBER"). Each Party agrees that the terms and conditions documented here govern each Order Form and/or Statement of Work ("SOW") that references this MSA. SUBSCRIBER agrees to be bound by and shall execute this Agreement upon its first access to any online systems connected to Products or Services sold hereunder.
A unique account established by SUBSCRIBER to enable one of its Authorized Users to access and use a GHOSTPOINT SECURITY Service.
An Authorized User who is assigned and expressly authorized by SUBSCRIBER as its agent to manage SUBSCRIBER's Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, manage templates, execute approved campaigns and events, assist in third-party product integrations, and to receive privacy disclosures. SUBSCRIBER may appoint an employee or a third-party business partner or contractor to act as its Account Administrator and may change its designation at any time through its Account.
Any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party's Affiliate as long as that interest is maintained.
One individual natural person, whether an employee, business partner, contractor, or agent of SUBSCRIBER or its Affiliates who is registered by SUBSCRIBER to use the GHOSTPOINT SECURITY Services. An Authorized User must be identified by a unique email address and user name, and two or more persons may not use the GHOSTPOINT SECURITY Services as the same Authorized User. If the Authorized User is not an employee of SUBSCRIBER, use of the GHOSTPOINT SECURITY Services will be allowed only if the user is under confidentiality obligations with SUBSCRIBER at least as restrictive as those in this Agreement and is accessing or using the GHOSTPOINT SECURITY Services solely to support SUBSCRIBER's and/or SUBSCRIBER Affiliates' internal business purposes.
Means (a) for GHOSTPOINT SECURITY and its Affiliates, the GHOSTPOINT SECURITY Services and Documentation; (b) for SUBSCRIBER and its Affiliates, SUBSCRIBER Data; (c) any other information of a Party or its Affiliates that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure, or that due to the nature of the information the Recipient would clearly understand it to be confidential; and (d) the specific terms and conditions of this Agreement between the Parties. Confidential Information does not include information that: (i) was or becomes generally known to the public through no fault of the Recipient; (ii) was rightfully in the Recipient's possession at the time of disclosure; (iii) was independently developed by the Recipient without use of the disclosing Party's Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality.
Any content, eDocuments, materials, data, and information that SUBSCRIBER or its Authorized Users provide to GHOSTPOINT SECURITY, including any SUBSCRIBER personal data and information contained in eDocuments. SUBSCRIBER Data does not include any component of the GHOSTPOINT SECURITY Services or material provided by or on behalf of GHOSTPOINT SECURITY.
GHOSTPOINT SECURITY's then-current technical and functional documentation for the GHOSTPOINT SECURITY Services as made generally available by GHOSTPOINT SECURITY.
A contract, notice, disclosure, or other record or document electronically provided to GHOSTPOINT SECURITY by SUBSCRIBER for processing.
The order form provided by GHOSTPOINT SECURITY that sets forth the pricing and options of the GHOSTPOINT SECURITY Services selected by SUBSCRIBER.
Any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary GHOSTPOINT SECURITY Services that are set forth in an Order Form or Statement of Work ("SOW").
GHOSTPOINT SECURITY will provide the specified product or services to SUBSCRIBER as set forth in the Order Form and/or SOW. Subject to the terms and conditions of this Agreement, GHOSTPOINT SECURITY grants to SUBSCRIBER a worldwide, limited, non-exclusive, non-transferrable right and license during the Term, solely for its and its Affiliates' internal business purposes, and in accordance with the Documentation, to: (a) use the GHOSTPOINT SECURITY Products or Services; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the GHOSTPOINT SECURITY provided interfaces; and (c) access and use the Documentation.
SUBSCRIBER shall not, and shall not permit its Authorized Users or others under its control to:
GHOSTPOINT SECURITY may suspend any use of the Services, or remove or disable any Account or content that GHOSTPOINT SECURITY reasonably and in good faith believes violates this Agreement. GHOSTPOINT SECURITY will use commercially reasonable efforts to notify SUBSCRIBER prior to any suspension or disablement, unless prohibited by law or necessary to prevent imminent harm.
If SUBSCRIBER registers for a free trial, promotional offer, or other type of limited offer for use of the Services ("Free Trial"), SUBSCRIBER may be presented with additional terms and conditions when registering for a Free Trial. Any such additional terms and conditions are incorporated into this Agreement as a Service Schedule and are legally binding upon the Parties.
ANY DATA THAT SUBSCRIBER ENTERS INTO THE GHOSTPOINT SECURITY SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR SUBSCRIBER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS SUBSCRIBER PURCHASES A SUBSCRIPTION, PURCHASES AN UPGRADED VERSION, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. FREE TRIALS ARE PROVIDED "AS-IS" AND "AS AVAILABLE." GHOSTPOINT SECURITY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO SUBSCRIBER'S USE OF THE FREE TRIAL IS $100.
SUBSCRIBER Data processed using the GHOSTPOINT SECURITY Services is and will remain owned by SUBSCRIBER. SUBSCRIBER hereby grants GHOSTPOINT SECURITY the right to process, transmit, store, or disclose SUBSCRIBER Data solely in order to provide the GHOSTPOINT SECURITY Services to SUBSCRIBER, subject to the confidentiality terms of this Agreement.
GHOSTPOINT SECURITY, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property rights in and to the GHOSTPOINT SECURITY Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto. Unless otherwise specified in the applicable SOW, all deliverables provided by GHOSTPOINT SECURITY in the performance of Professional Services, excluding SUBSCRIBER Data, are owned by GHOSTPOINT SECURITY.
SUBSCRIBER may choose to obtain products, services, or materials provided or supported by third parties for use with GHOSTPOINT SECURITY Services. GHOSTPOINT SECURITY assumes no responsibility for, and specifically disclaims any liability with respect to, any Third-Party Services and Materials provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor and SUBSCRIBER.
GHOSTPOINT SECURITY encourages SUBSCRIBER to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to GHOSTPOINT SECURITY Services. To the extent SUBSCRIBER provides Feedback, SUBSCRIBER grants to GHOSTPOINT SECURITY a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback without restriction; provided that such Feedback does not identify SUBSCRIBER, its Affiliates, or Authorized Users without SUBSCRIBER's prior written consent.
GHOSTPOINT SECURITY will use commercially reasonable industry standard security technologies in providing the GHOSTPOINT SECURITY Services. GHOSTPOINT SECURITY has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, to preserve the security, integrity, and confidentiality of SUBSCRIBER Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data.
SUBSCRIBER is responsible for SUBSCRIBER Data as entered into, supplied, or used by SUBSCRIBER and its Authorized Users. SUBSCRIBER is solely responsible for determining the suitability of the GHOSTPOINT SECURITY Services for SUBSCRIBER's business and complying with any applicable data privacy and protection regulations, laws, or conventions applicable to SUBSCRIBER Data. GHOSTPOINT SECURITY processes SUBSCRIBER Data solely: (a) to provide the GHOSTPOINT SECURITY Services; (b) to verify SUBSCRIBER's compliance with restrictions set forth in Section 2.2 where GHOSTPOINT SECURITY has a reasonable belief of non-compliance; and (c) as otherwise set forth in this Agreement.
SUBSCRIBER agrees that GHOSTPOINT SECURITY may collect, use, and disclose quantitative data derived from the use of the GHOSTPOINT SECURITY Services for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and de-identified form only and will not identify SUBSCRIBER, its Authorized Users, SUBSCRIBER Data, or any third parties utilizing the GHOSTPOINT SECURITY Services.
Except as expressly set forth in the applicable Order Form or SOW, SUBSCRIBER will pay all fees in accordance with the following: (a) GHOSTPOINT SECURITY Services fees are invoiced annually in advance; (b) the first invoice will coincide with the Order Start Date or effective date of a SOW; (c) payment will be due within thirty (30) days from the date of the invoice; and (d) all amounts will be denominated in U.S. dollars. Upon execution, each Order Form and/or SOW is noncancellable and non-refundable except as provided in this Agreement.
SUBSCRIBER may withhold from payment any charge or amount disputed by SUBSCRIBER in good faith pending resolution, provided that SUBSCRIBER: (i) notifies GHOSTPOINT SECURITY of the dispute prior to the due date, specifying the amount and reason in sufficient detail; (ii) makes timely payment of all undisputed charges; (iii) works diligently with GHOSTPOINT SECURITY to resolve the dispute promptly; and (iv) pays all amounts determined to be payable within ten (10) days following resolution.
If SUBSCRIBER issues a purchase order, then it shall be for the full amount set forth in the applicable Order Form or SOW. GHOSTPOINT SECURITY hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by SUBSCRIBER. SUBSCRIBER agrees that failure to provide GHOSTPOINT SECURITY with the corresponding purchase order shall not relieve SUBSCRIBER of its payment obligations.
GHOSTPOINT SECURITY may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. SUBSCRIBER will be responsible for any reasonable attorneys' fees, costs, and expenses incurred by GHOSTPOINT SECURITY to collect any amounts that are not paid when due.
All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes ("VAT"), goods and services taxes ("GST"), excise, business, service, and similar transactional taxes (collectively, "Taxes"). SUBSCRIBER shall be responsible for and bear Taxes associated with its purchase of, payment for, access to, or use of the GHOSTPOINT SECURITY Services. If SUBSCRIBER claims tax exempt status, it shall provide GHOSTPOINT SECURITY with a valid tax exemption certificate authorized by the applicable governmental authority. The Parties' obligations under this Section shall survive the termination or expiration of this Agreement.
If GHOSTPOINT SECURITY is required to invoice or collect Taxes associated with SUBSCRIBER's purchase of, payment for, access to, or use of the Services, GHOSTPOINT SECURITY will issue an invoice to SUBSCRIBER including the amount of those Taxes, itemized where required by law. SUBSCRIBER shall use the ordered GHOSTPOINT SECURITY Services for SUBSCRIBER's business use in accordance with the provided VAT or GST identification number(s).
The term of an Order Form and any associated Service Schedule(s) is the period beginning on the Order Start Date and, unless terminated sooner as provided herein, continuing until the Order End Date specified on the Order Form. In the case of a SOW for Professional Services with no specified end date, the SOW shall expire upon completion of Professional Services or early termination as permitted by this Agreement.
If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default is cured within thirty (30) days after the defaulting Party receives notice thereof. Either Party may terminate this Agreement upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation that is not dismissed within sixty (60) days of its commencement.
If this Agreement expires or is terminated for any reason: (a) SUBSCRIBER will pay to GHOSTPOINT SECURITY any amounts that have accrued before, and remain unpaid as of, the effective date; (b) all accrued liabilities of either Party survive; (c) licenses and use rights granted to SUBSCRIBER will immediately terminate; (d) GHOSTPOINT SECURITY's obligation to provide further services will immediately terminate, except any services expressly to be provided following termination; and (e) the Parties' rights and obligations under Sections 6.1, 7.3, 8.3, and 10 through 13 will survive.
GHOSTPOINT SECURITY warrants that during the applicable Term, the GHOSTPOINT SECURITY Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable GHOSTPOINT SECURITY Services. SUBSCRIBER's sole and exclusive remedy for any breach of this warranty is for GHOSTPOINT SECURITY to repair or replace the affected Services to make them conform, or, if GHOSTPOINT SECURITY determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement.
Each Party represents and warrants that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, GHOSTPOINT SECURITY: (A) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND — WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY — AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND (C) DOES NOT WARRANT THAT THE GHOSTPOINT SECURITY SERVICES ARE OR WILL BE ERROR-FREE OR MEET SUBSCRIBER'S REQUIREMENTS.
GHOSTPOINT SECURITY will indemnify SUBSCRIBER and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any actual or threatened third-party claim, legal action, or administrative agency action ("Claim") to the extent arising from or related to: (i) any alleged breach by GHOSTPOINT SECURITY of specified security safeguards resulting in a breach of its confidentiality obligations; and (ii) any alleged infringement of any third-party intellectual property rights by the GHOSTPOINT SECURITY Services as provided by GHOSTPOINT SECURITY, when used as authorized under this Agreement, provided that GHOSTPOINT SECURITY will not be responsible for alleged infringement that is due to the combination of GHOSTPOINT SECURITY Services with goods or services provided by third parties.
SUBSCRIBER will indemnify GHOSTPOINT SECURITY and its employees, directors, agents, and representatives from, and defend against, any Claim to the extent arising from or related to: (a) use of the GHOSTPOINT SECURITY Services by SUBSCRIBER or its Authorized Users in violation of this Agreement, the Documentation, or applicable law; (b) any breach by SUBSCRIBER of its obligations under Section 2.2(e)–(h) (Restrictions) or Section 11 (Confidentiality); or (c) the nature and content of all SUBSCRIBER Data processed by the GHOSTPOINT SECURITY Services.
The Parties' respective indemnification obligations are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim; (c) the relevant Indemnified Parties providing reasonable assistance in connection with the defense and settlement; and (d) the Indemnified Parties' compliance with any settlement or court order made in connection with the Claim.
If SUBSCRIBER is enjoined or otherwise prohibited from using any of the GHOSTPOINT SECURITY Services based on a Claim covered by GHOSTPOINT SECURITY's indemnification obligations, then GHOSTPOINT SECURITY will, at its sole expense and option, either: (a) obtain for SUBSCRIBER the right to use the allegedly infringing portions; (b) modify the allegedly infringing portions so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions with non-infringing items of substantially similar functionality. If GHOSTPOINT SECURITY determines that none of the foregoing remedies are commercially reasonable, then either Party may terminate this Agreement, and GHOSTPOINT SECURITY will provide a prorated refund for any prepaid fees corresponding to the unused portion of the Term.
EXCEPT FOR THE PARTIES' OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
EXCEPT FOR: (A) THE PARTIES' OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS); (B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) GHOSTPOINT SECURITY'S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY SUBSCRIBER FOR THE GHOSTPOINT SECURITY SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by GHOSTPOINT SECURITY to SUBSCRIBER and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement.
During and after the Term, Recipient will: (a) use the Confidential Information of the other Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature, using no less than a reasonable degree of care.
If Recipient is required by law to disclose Confidential Information of the other Party or the terms of this Agreement, Recipient will give prompt written notice to the other Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title, or interest in or to any of the disclosing Party's Confidential Information.
Recipient acknowledges that any actual or threatened breach of this Section 11 may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to seek injunctive relief in addition to all remedies available at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.
This Agreement is governed by the laws of the State of New Hampshire, U.S.A., without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in New Hampshire, for the purposes of adjudicating any dispute arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted, shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding intellectual property rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
Neither Party may assign its rights nor obligations under this Agreement without the other Party's prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets, without the other Party's consent, provided that: (a) the purchaser is not insolvent; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Any other attempt to transfer rights or obligations under this Agreement will be void.
Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent via certified or registered mail to the mailing addresses listed on the Order Form. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given upon receipt.
In the event that either Party is prevented from performing any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) ("Force Majeure Event"), the affected Party's performance will be excused and the time for performance will be extended for the period of delay or inability to perform, provided that the affected Party provides prompt notice, uses commercially reasonable efforts to mitigate the cause and effect, and provides prompt notice of the end of such Force Majeure Event.
The GHOSTPOINT SECURITY Services, Documentation, and their derivatives are subject to the export control and sanctions laws and regulations of the United States and other countries. Each Party shall comply with all applicable Trade Restrictions and represents that it is not a Restricted Party. SUBSCRIBER shall not and shall not permit any Authorized User to access, use, or make the Services available to or by any Restricted Party or to or from within a country or territory subject to comprehensive U.S. sanctions, including Cuba, the Crimea region of Ukraine, Iran, North Korea, and Syria.
In connection with the services performed under this Agreement, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
All GHOSTPOINT SECURITY software is commercial computer software and all services are commercial items as defined under applicable Federal Acquisition Regulation ("FAR") provisions. GHOSTPOINT SECURITY provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in applicable FAR and DFARS provisions.