Simply Technology, LLC
Terms & Conditions of Service
Last modified: July 15, 2020
These Terms & Conditions of Service (the “Agreement”) available at https://simplytechnology.com/terms-conditions/ govern the provision of certain Information Technology (“IT”) products and services by Simply Technology, LLC (“ST”), a Michigan limited liability company, to Customer and its Affiliates (collectively, the “Customer”) (each a “party” and collectively, the “parties”). By accepting IT products and services provided by ST, Customer agrees to be bound by this Agreement.
- Scope. The scope of this Agreement is a “master” agreement and encompasses any and all products and services provided by ST to Customer during the term of this Agreement.
- Order Form. ST may provide products and services pursuant to an Order Form (“Order”) describing the products and services to be provided (including any applicable Service Level Agreements). A formal quotation (“Quote”) duly issued by ST and signed by the parties shall be an Order under this Agreement. Orders shall be valid and enforceable under the terms of this Agreement upon acceptance by the parties and, upon such acceptance, shall be incorporated into this Agreement.
- Change Orders. During the term of this Agreement, if the parties desire to make changes to an existing Order, they may issue a Change Order. A Change Order shall be valid and enforceable under the terms of this Agreement upon being accepted by the parties and, upon its acceptance, shall be incorporated into this Agreement.
- Estimates. Any estimate provided by ST, whether made orally or in writing, is provided strictly for budgetary purposes only and shall not be binding.
- Professional Services. Professional Services provided under this Agreement will be billed on a time and material basis at ST’s then applicable hourly rates for such services. ST reserves the right to add a reasonable markup to any material supplied.
- Joint Efforts. Customer acknowledges that ST’s ability to perform its obligations is contingent upon Customer’s cooperation, which may include Customer supplying certain access, information, specifications, feedback, and other items as ST may reasonably determine. Customer hereby agrees to provide such cooperation in a timely manner upon ST’s reasonable request.
- Project/Service Start Date. The expected start date for any project or service to be provided by ST may be subject to the satisfaction of certain prerequisites, including, but not limited to, the receipt of any required materials, information, or payments, and the completion of any site preparation and necessary installations. Regardless of any specific timing or delivery schedules or estimates provided in an applicable Order or Change Order, Customer acknowledges that the services rendered by ST are of a complex nature and that occasional delays in delivery sometimes occur. Minor delays in delivery by ST shall not constitute a breach of this Agreement. If ST expects a delay in delivery to occur, ST will make commercially reasonable efforts to keep Customer apprised of such delay. Customer shall pay, as a liquidated damage, ten percent (10%) of the applicable contract price (subject to a Five Hundred Dollar ($500.00) minimum) for any delay or rescheduling of a Project/Service Start Date caused by Client that occurs within ten (10) calendar days of the scheduled Project/Service Start Date if ST was prepared to deliver on such date.
- Installation. ST shall install any products or materials that are to be installed according to its fee for such installation, if any. Dates or timelines provided for installation are only estimates and actual timing may vary. Customer is responsible for preparing and maintaining the site for installation, including providing the necessary infrastructure, including any electrical power, communication lines, HVAC, and physical security, etc. that may be needed for the particular products or services. Prior to ST performing any on-site services, including installation, Customer shall name ST as an additional insured under its general liability insurance policy. If Customer fails to do so, then Customer will be deemed to have self-insured ST for any such claim or liability.
- Improvements. During the term of this Agreement, ST may provide maintenance, updates, replacements, and upgrades (collectively, “Improvements”) to improve the performance of Customer’s IT systems. To enhance the speed and quality of such service, Customer hereby authorizes ST to perform such Improvements as it deems necessary in its discretion and consents to paying ST for any cost associated therewith, including for labor and materials, not to exceed $100.00 in any given month (not including any regular monthly charges). If the cost of any such Improvements would exceed $100.00 in a given month, ST will seek Customer’s approval prior to providing such Improvements.
- Acceptance of Delivery; Right to Cure. Within 30 days of the delivery of any product or service, Customer shall notify ST of any dissatisfaction it may have with ST’s performance or workmanship pertaining thereto, otherwise, Customer’s acceptance of such product or service shall be presumed and any claim(s) Customer may have concerning such matter shall be deemed discharged and waived. Within 30 days of ST receiving any such notice of dissatisfaction, ST shall have the right to (1) object to or provide an explanation concerning such dissatisfaction; (2) resolve any such dissatisfaction through as many separate attempts as may be necessary; and (3) refund some or all of Customer’s payment for such product or service to finally resolve the matter. Upon accepting any such resolution, the matter shall be deemed finally settled and Customer agrees to fully release and forever discharge ST from and against any and all such claims, actions, demands, rights, causes of action, and liabilities, whether in law or in equity, with respect to such matter.
- Payment Terms. Payment for recurring services shall be billed at the start of every month for the services to be provided in that month. All other payments are due within thirty (30) days of invoice (Net 30). Payments received more than 30 days late are subject to a $30.00 late charge or 5% of the outstanding amount due, whichever is greater. Any balance outstanding 60 days or more will be subject to an additional $30.00 late charge or 5% of the total amount outstanding, whichever is greater.
- Term; Renewal. This Agreement shall be in effect as of the Effective Date and remain in effect for the term or duration of any service provided by ST pursuant to any applicable Order or SLA, after which this Agreement shall be renewed each month on a month-to-month basis until terminated according to this Agreement. If no term or duration is specified in an applicable Order or SLA, then the term of this Agreement shall be twelve (12) months from the Effective Date and shall automatically renew on its anniversary for an additional 12-month term, after which this Agreement shall be renewed each month on a month-to-month basis until terminated according to this Agreement.
Termination. During the initial Term and any 12-month renewal term, this Agreement may be terminated by either party for any reason upon 60-days written notice to the other party. During any month-to-month term, this Agreement may be terminated by either party for any reason upon 30-days written notice to the other party.
- Default for Nonpayment. Payments or amounts more than sixty (60) days past due shall be deemed a material breach of this Agreement and may result in the stoppage of any and all services and ST’s enforcement of any and all rights to which ST may be entitled. Further, ST reserves the right to retain or re-gain possession of all equipment, software, and documents ordered or installed at Customer’s site and to dismantle any hardware and/or software already installed until full payment is made. The cost of re-mounting any such hardware or software will be charged to Customer at ST’s then applicable rate. Customer agrees to pay ST on demand all costs and expenses to enforce its right to payment under this Agreement, including actual legal fees.
- Independent Contractor. The parties agree that ST is an independent contractor and not an employee, partner, agent, or joint venture of Customer and shall control the mode of its own work performed under this Agreement.
- Subcontracting. ST reserves the right to utilize subcontractors and other vendors in its sole discretion.
- Access Rights. ST, its employees, agents, designees, and assigns shall be permitted access to Customer’s facilities upon reasonable request for the purposes of fulfilling its obligations hereunder. However, Customer shall remain responsible for ensuring the security of its facilities and IT systems prior to, during, and following such access.
- Security Incidents. In the event of an immediate information security risk to Customer’s IT systems, Customer expressly permits ST to take any reasonable measures in its discretion to respond to and remediate such risk without prior notice to or obtaining consent or authorization from Customer. Customer agrees to reimburse ST for all reasonable costs associated with responding to and remediating any such risk that arises as a result of Customer’s own negligence.
- Information Security Responsibilities; Administrator Access.
Information Security Responsibilities. Customer shall be solely responsible for its own:
- Governance, risk management, and compliance (GRC);
- Information security practices, including internal controls, proper security “hygiene,” and employee training;
- Security appliances, tools, and products not specifically provided and exclusively managed by ST;
- IT systems and infrastructure not specifically provided and exclusively managed by ST, including any “legacy” systems;
- Software and hardware not specifically provided and exclusively managed by ST;
- Data backups not specifically provided and exclusively managed by ST;
- Data retention and disposal policies and practices; and
- Compliance with local, state, federal, and foreign laws and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA), the EU General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Payment Card Industry Data Security Standard (PCI-DSS), and other compliance requirements.
Administrator Access. Unless otherwise agreed, ST shall retain “administrator” access to Customer’s IT environment(s) and shall retain access to any administrator passwords. In situations where Customer has or is provided administrative access, Customer is solely responsible for the actions it takes when acting as administrator, including the cost of any service or repairs necessary as a result of Customer’s administrative access regardless of whether Customer is under an “unlimited” support plan.
- Duty to Notify; Accountability & Change Management.
Duty to Notify. Customer shall notify ST immediately upon discovering or suspecting that it has or is presently experiencing an information security or cybersecurity incident or upon the occurrence of any material changes to be made to Customer’s IT systems or environment including, but not limited to, changes in IT personnel, access controls, workstations and endpoints, networked equipment, network configurations, data backup or storage practices, Internet Service Provider (ISP), or any non-routine software or application changes or updates.
Accountability & Change Management. Customer agrees that all packaged, i.e. “off-the-shelf,” “shrink-wrapped,” or custom software intended to be added to Customer’s IT environment is subject to prior review and testing by ST. Customer acknowledges that the expense associated with testing software prior to deployment on the production environment is minimal relative to the potential exposure of introducing untested software into a “live” environment. With respect to obtaining a software vendor’s cooperation in securing software media, license keys, or documentation, Customer agrees to intercede to secure such vendor’s cooperation and pay any costs relating thereto that may be incurred.
- Assumption of Risk; Malware and Virus Disclaimer.
Assumption of Risk. Customer acknowledges that the use of information technology systems and networked devices, especially those connected to the Internet, carry inherent risks, including risks to the confidentiality, integrity, and availability of data, as well as to the disruption and loss of cyber-physical and other critical systems, which may occur as a result of cyberattacks, software and hardware faults, failures, breakage, malfunctions, and other events (collectively, the “Potential Risks”). Customer hereby agrees to assume such risks and to hold ST harmless with respect to the Potential Risks except as may be the direct result of ST’s own gross negligence or willful misconduct.
Malware and Virus Disclaimer. With respect to ST’s services involving the provision or management of third party antivirus software by ST, ST will use commercially reasonable efforts to ensure that such antivirus software is installed as intended, patched, and updated to the latest version within commercially reasonable timeframes. However, Customer acknowledges that antivirus software is not 100% effective, including against “zero-day” exploits, advanced persistent threats (APTs), and other malware, and that even if reasonable efforts and precautions are taken, antivirus tools and associated updates sometimes fail. Inclusive of Customer’s assumption of the Potential Risks as set forth in this Section 21, Customer assumes the risks associated with antivirus software failures and the resulting harms that may be caused by computer viruses and malware. ST shall have no liability whatsoever arising out of the failure of antivirus software. Customer shall be responsible for all costs and fees associated with triaging, containing, eradicating, and remediating, etc. any computer viruses or malware.
- Indemnification. Customer agrees to indemnify ST, its officers, directors, employees, agents vendors, contractors, associates, and assigns (each an “Indemnitee” and collectively, “Indemnitees”) and pay on demand for the defense of an Indemnitee or Indemnitees (including any costs, expenses, and attorneys’ fees) from and against any and all third party claims, suits, demands, liabilities, damages, losses, costs and expenses arising out of or in any way relating to this Agreement except as such may be the result of ST’s own gross negligence or willful misconduct.
- Third Party Services. Customer expressly agrees to assume full responsibility for its compliance with all third-party software licenses and terms of service, including that such licenses are properly maintained and abided. ST hereby disclaims any and all responsibility and liability for or relating to Customer’s use of third-party software and the use of unlicensed, out-of-support, or deprecated software and may deny or limit the provision of service for reasons relating thereto. Customer’s use of or access to any third-party products and services provided under this Agreement shall be strictly limited to and governed by any such agreements, licenses, terms of service, or the like associated with such products and services. Customer’s sole and exclusive remedy with respect to a third-party product or service shall be limited to any remedy against that third-party that may be made available by such third party and under no circumstances will Customer look to ST for any such remedy.
- DISCLAIMERS. EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED HEREIN: (1) ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ST DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE; (2) ST DOES NOT WARRANT THE WORK AND SERVICE PROVIDED WILL BE UNINTERRUPTED AND/OR ERROR FREE; (3) ST DOES NOT MAKE AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE; (4) ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF CUSTOMER, AND DO NOT EXTEND TO ANY THIRD PARTY. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT ST SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR OR WARRANTY OF ANY OF SOFTWARE OR HARDWARE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY ST OR BY A THIRD PARTY; AND (5) ST HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS COMPLIANE WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), THE GRAMM-LEACH-BLILEY ACT (GLBA), THE EU GENERAL DATA PROTECTION REGULATION (GDPR), THE CALIFORNIA CONSUMER PRIVACY ACT (CCPA), THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD (PCI-DSS), THE FEDERAL INFORMATION SECURITY MANAGEMENT ACT (FISMA), THE DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (DFARS), THE CYBERSECURITY MATURITY MODEL CERTIFICATION, THE FBI CRIMINAL JUSTICE INFORMATION SERVICES (CJIS), THE SECURITIES AND EXCHANGE COMMISSION REUGLATION S-P RULE 30, THE SARBANES-OXLEYACT (SOX), AND ANY OTHER SIMILAR COMPLIANCE REQUIREMENT.
- LIMTATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ST BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. ST’S TOTAL POSSIBLE LIABILITY UNDER THIS AGREEMENT (WHETHER ARISING FROM CONTRACT, TORT, OR OTHERWISE) SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000.00) OR THE TOTAL AMOUNT CUSTOMER HAS PAID ST IN SERVICE FEES IN THE PRECEDING THREE (3) BILLING CYCLES. CUSTOMER FURTHER AGREES THAT NO TRUSTEE, OFFICER, DIRECTOR, GENERAL OR LIMITED PARTNER, MEMBER, SHAREHOLDER, BENEFICIARY, EMPLOYEE OR AGENT OF ST SHALL BE HELD TO ANY LIABILITY, JOINTLY OR SEVERALLY, FOR ANY DEBT, CLAIM, DEMAND, JUDGMENT, DECREE, LIABILITY OR OBLIGATION OF ANY KIND (IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THIS AGREEMENT.
- No Wavier. ST’s failure to seek redress for a violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed a waiver of such violation nor prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation.
- Confidentiality. Except as the parties may otherwise expressly agree (i.e. through a separate nondisclosure agreement or business associate agreement (“BAA”)), no information (whether or not marked confidential or proprietary) disclosed by Customer, either directly or indirectly, or made available or accessible to ST, its employees, subcontractors, agents, or designees and assigns through ST’s access to Customer and its employees, facilities, databases, and IT systems, etc. shall be considered confidential or proprietary and Customer hereby waives and releases ST from any claim or liability relating thereto.
- Intellectual Property; Limited License; ST Software; Hardware-as-a-Service (HaaS).
Intellectual Property. Except as may otherwise be provided in this Agreement, neither party shall acquire any right, title, or interest in any intellectual property of any other party, including that of third parties, unless expressly agreed to in a writing signed by the applicable parties. Customer hereby agrees to be bound by any agreement, including, but not limited to, any terms of service and license agreements, of any third-party products or services provided to Customer under this Agreement.
Limited License. Customer hereby grants ST a limited, nonexclusive, fully paid, royalty-free, worldwide license to copy, modify, and distribute Customer’s supplied data (“Customer Data”) as ST may deem necessary in fulfilling its obligations under this Agreement.
ST Software. All software, including any related source code, developed by ST for use by Customer in connection with this Agreement is the sole and exclusive property of ST (the “ST Software”). Customer is hereby granted a limited, nonexclusive, nontransferable, revocable license to use the ST Software, as such software may be installed by ST on any servers, endpoints, personal computers, or any other devices, for Customer’s internal business purposes only. Except as set forth in this Section 28, Customer may not (i) copy, modify, or create derivative works of the ST Software or any component of the ST Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the ST Software except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the ST Software, in whole or in part; (iv) remove any proprietary notices from the ST Software; or (v) use the ST Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. ST is the sole owner of the methodologies used to develop the ST Software and retains all intellectual property rights relating thereto, including, but not limited to, any rights existing in patent, trademark, copyright, or otherwise, whether or not patented or patentable.
Hardware-as-a-Service (“HaaS”). ST is the sole owner of and retains all right, title, and interest in any computer hardware provided to Customer on a loaned, leased, or subscription basis (“HaaS”). With respect to HaaS, Customer shall be responsible for protecting and insuring such hardware from damage, including, but not limited to, fire, flood, theft, negligent acts, malicious destruction, and other casualty, and agrees assume the cost of any replacement of or repair to such hardware that results from such damage. ST reserves the right to access and reclaim such hardware as needed to provide the service, including any hardware “swaps” that may be necessary. Customer is prohibited from tampering with, removing, relocating, or materially altering any such hardware without ST’s prior written authorization.
- Non-Competition. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not, anywhere in the continental United States, directly or indirectly compete with ST, without the prior written consent of ST. The parties agree that money damages would be insufficient to address a violation of this provision and acknowledge and agree that ST shall be entitled to injunctive relief in addition to pursuing other remedies.
- Non-Solicitation. During the term of this Agreement and for a period of 24-months thereafter, Customer shall not directly or indirectly solicit, recruit, or employ any employee of ST without the prior written consent of ST. Customer recognizes that because of the substantial recruitment and training costs in the Information Technology industry, Customer agrees to pay as liquidated damages for a breach of this Section 30 an amount equal to One Hundred Percent (100%) of the ST employee’s then annualized compensation (subject to an Eighty Five Thousand Dollar ($85,000) minimum) in addition to all of ST’s costs and expenses, including ST’s actual legal fees, associated with ST’s efforts to enforce the same.
- Notices. All notices, demands, and communications required or permitted in connection with this Agreement will be in writing and shall be deemed effectively given in all respects upon delivery to a party’s principal place of business by registered mail or by personal delivery by a party or a third-party courier or, in the alternative, if delivered by email to ST at firstname.lastname@example.org and to Customer at Customer’s then primary email address on file.
- Incorporation. This Agreement incorporates any applicable Orders and Change Orders (including any applicable Service Level Agreements) accepted by the parties under this Agreement.
- Force Majeure. In no event shall ST be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil unrest, civil or military disturbances, nuclear or natural catastrophes, pandemics, government ordered shut downs, acts of God, and interruptions to or the loss or malfunctions of utilities, communications or computer (software or hardware) services.
- Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the state of Michigan without regard to its conflict of laws principles.
- Dispute Resolution; Prevailing Party. Any dispute arising hereunder, whether arising in contract, tort, or otherwise, shall be adjudicated in a court of competent jurisdiction located in Wayne County, Michigan and the parties hereby agree, consent, and submit to the personal jurisdiction of such court or courts. If Customer brings an action of any kind arising under or in relation to this Agreement and ST prevails in such action, Customer shall pay ST its actual and costs and expenses, including legal fees and for any appeals, incurred by ST with respect to such action.
- CLASS ACTION WAIVER. THE PARTIES AGREE THAT ANY DISPUTE SHALL BE RESOLVED IN EACH PARTY’S RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
Acceptable Use Policy. ST’s services may not be used for unlawful, fraudulent, offensive, or obscene activity, as determined solely in the discretion of ST. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations applicable to Customer, and all guidelines, standards, and requirements that may be included in ST’s Acceptable Use Policy, as such policy may be updated from time-to-time in accordance with its terms.
- Survival. The expiration or termination of this Agreement shall not release Customer of its obligation to make any payments owed under this Agreement. Further, the parties agree that the indemnification provision set forth in section 22, the disclaimers set forth in section 24, and the limitation of liability provision set forth in section 25 shall survive expiration and termination of this Agreement indefinitely. Furthermore, the non-competition and non-solicitation provisions set forth in sections 29 and 30, respectively, shall each survive for their respective terms as provided in this Agreement.
- Modification. Customer acknowledges and agrees that ST may, in its sole discretion, modify this Agreement from time-to-time, and that modified terms become effective sixty (60) days from the date of such modification. Customer will be notified of modifications through notifications or posts on https://simplytechnology.com/terms-conditions/ and/or by other communication, such as email. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued engagement of ST or the use or consumption of ST’s products or services after the effective date of such modifications will be deemed Customer’s acceptance of the modified terms.
- Assignment; Successors and Assigns; No Third-Party Beneficiaries. This Agreement may be assigned by ST in its discretion upon reasonable notice. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, and assigns. There are no intended beneficiaries other than the parties hereto.
- Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect.
- Construction; Definition of Affiliate.
Construction. Unless the context of this Agreement otherwise requires: (1) words importing the singular include the plural and vice-versa, (2) the use of all pronouns shall be interchangeable and considered gender neutral, and (3) section headings and paragraph titles in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation.
Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” shall mean with respect to any specified person or entity (a “Person”), any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the specified Person; and for the purposes of this definition, “control” (including the terms controlling, controlled by, or under common control with) means the possession, direct or indirect, or the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, partnership or member interests, by contract or otherwise.
- Export Regulation; U.S. Government Rights.
Export Regulation. The products and services provided utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the products and services or the software or technology included in the products and services to, or make the products and services or the software or technology included in the products and services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the products and services or the software or technology included in the products and services available outside the US.
U.S. Government Rights. Each of the software components that may constitute the products and services and Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the products and services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
- Opportunity to Review. Each party hereto acknowledges and agrees that it had sufficient time and opportunity to review and consult with legal counsel prior to executing this Agreement.
- Authority. The parties hereto represent and warrant that they are legally authorized to enter into this Agreement and that each has the full power and authority to perform this Agreement and has taken all actions required to authorize the execution and delivery of this Agreement.