Terms of Use

— PLEASE READ THESE TERMS OF SERVICE CAREFULLY —

(REV. 15-FEB-20)

This Terms of Use (hereinafter referred to as “Terms of Use”) sets forth the express terms and conditions under which Gateway Checker Corporation (hereinafter referred to as “Gateway”) agrees (i) to allow you, which shall include any subsidiary, division and/or affiliate in which you have a fifty (50%) percent or greater equity interest and/or control of a majority of the voting rights (hereinafter collectively referred to as “You” and/or “Your”) to access the Gateway Checker Content, as further defined below; (ii) to provide to You Gateway’s services, and/or (iii) to provide You a limited right to use Gateway’s software and related products ((i) thru (iii) hereinafter are collectively referred to as “Service(s)”). Please also note, that these Terms of Use incorporates the Gateway Checker Privacy Policy (http://www.gatewaychecker.com/privacy), and Acceptable Use

Policy (www.gatewaychecker.com/aup) and any other policy, which Gateway may choose to implement from time to time (hereinafter collectively referred to as the “Gateway Policies”), which are displayed upon Gateway’s Website, as further defined below. It is Your responsibility to review these Terms of Use and the Gateway Policies, on a frequent basis to ensure Your compliance.

YOUR ACCESS TO AND CONTINUED USE OF THE GATEWAY WEBSITE AND/OR RECEIVING THE SERVICES ARE EXPRESSLY AND CONDITIONALLY PROVIDED TO YOU IN RELIANCE ON YOUR CONTINUED COMPLIANCE WITH THE TERMS OF SERVICE AND GATEWAY POLICIES. BY ACCESSING THE GATEWAY WEBSITE AND/OR RECEIVING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO BE BOUND TO THESE TERMS OF USE, YOU SHOULD ABSTAIN FROM ACCESSING THE GATEWAY WEBSITE AND/OR IMMEDIATELY CEASE UTILIZING THE SERVICES.

WHEREAS, Gateway is in the business of providing software and professional services; and You desire to obtain access to use such software on a software-as-a-service basis and/or purchase such professional services; and

NOW, THEREFORE, in consideration of the promises and covenants contained herein You agree as of the Effective Date to the following:

1. Definitions.

Acceptable Use Policy” and/or “AUP” shall mean the set of rules and restrictions that Gateway may modify or update from time to time which set forth the proper way for You to utilize Gateway’s network and for permitted and appropriate use of the Software as a Service by You, a copy of which is located at www.gatewaychecker.com/aup, which is hereby incorporated by reference.

Authorized Contact(s)” shall mean named individuals trained in the use of the Software as identified by You, as indicated on the Order, as having security authorization to contact Gateway’s Technical Support Department to report problems and seek assistance in the use of the Software and Services.

Effective Date” shall mean the day that You first utilizes the SaaS.

Gateway Content” shall mean Gateway-supplied text, audio, video, graphics and other information and data available by means of the Software as a Service or on Gateway’s Web-Site under the Internet domain name  gatewaychecker.com.

Order” shall mean the document that sets forth the Service(s) Gateway agrees to provide to You in exchange for certain fees, which incorporates these Terms of Use by reference.

Production Environment” shall mean a configuration of the Software that can operate and/or interoperate against any software applications residing on Gateway’s internal or external production servers.

SaaS Term” shall mean the length of time you are permitted to access the Software as a Service.

Software” shall mean the Gateway software applications, which You may access via a SaaS delivery model, as indicated in the applicable Order, which is either attached hereto or incorporates these Terms of Use by reference, provided, however, that the Software shall not be deemed to include the Virtual Appliance(s), open source software, shareware and/or other third-party software applications.

Software as a Service” &/or “SaaS” shall mean Gateway’s hosted on-demand services offering, which allows You to access the applicable Software, as indicated in the applicable Order, for the SaaS Term.

Your Data” shall mean data, information or material provided or submitted by You or any User to Gateway in the course of utilizing the Service(s).

Web-Site” shall mean the contents of the collection of web pages located at the URL (www.gatewaychecker.com) and the Internet domain name gatewaychecker.com, which may be updated from time-to-time.

2. License Grant & Restrictions.

2.1 License Grant. In consideration for the payment of the fees, as reflected in the applicable Order, (“Fees”) which incorporates these Terms of Use by reference, Gateway hereby grants to You and You accept, a limited nonexclusive, non-transferable license, for the SaaS Term to (i) access and use the Software as a Service during the SaaS Term via the Internet under and subject to the terms and conditions of these Terms of Use; (ii) store, print, and display the Gateway Content and to permit employees to access such Gateway Content only in connection with use of the Software as a Service. No other use of Gateway Content is permitted.

2.2 Restrictions. You specifically agree to limit the use of the Software and/or SaaS to those specifically granted in these Terms of Use. Without limiting the foregoing, You specifically agree not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Software;  (iii) remove any of Gateway’s, or its vendor’s, copyright notices and proprietary legends (iv) use the Software (a) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy, (b) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising), (c) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data, (d) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems, or (e) such that the total number of Seats in excess of the total Seats allocated to You as reflected in the applicable Order; (v) to file copyright or patent applications that include the Software or any portion thereof; and/or (vi) to initiate or cause to be initiated any load testing, penetration testing, vulnerability scans, URL manipulation, SQL injections system attacks, cross-site scripting attacks, session hijacking, clickjacking and/or any other malicious, detrimental or nonproductive resource consuming scans upon the SaaS or Gateway’s (or Gateway’s vendor’s) computer information systems networks.

2.3 Limited License to Your Data. Subject to the terms and conditions of these Terms of Use, You hereby grant to Gateway and/or its suppliers a limited non-exclusive non-transferable license to Your Data only to the extent necessary for Gateway or its suppliers to perform its obligation in furtherance of these Terms of Use.  You hereby authorize Gateway to use Your Data to perform the Services pursuant to these Terms of Use. In the event that Gateway needs to access Your Data to respond to any technical problems, queries, or requests from You, You shall ensure that both You and Gateway are permitted to do so.

3. Operational Concerns.

3.1 SaaS & Support. In exchange for prompt payment of certain Fees, so long as You are not in material breach of any section of these Terms of Use, Gateway shall make available to You the Software indicated in the applicable Order on a hosted on-demand basis, subject to the exception that Gateway reserves the right to make changes and updates to the functionality and/or documentation for the Software as a Service from time to time; and to suspend the services for regularly schedule maintenance periods.

3.2 Password Security.  You are responsible for maintaining the security and confidentiality of all usernames, identification numbers, passwords and access keys.  You shall not disclose or make available Your passwords other than to Your authorized employees and shall use best efforts to prevent unauthorized access to, or use of, the Services. In the event that You make such passwords available to any third-party, as between Gateway, its suppliers and You, You shall be solely liable for all actions taken by such third-party and resulting consequences. You agree to notify Gateway immediately of any unauthorized use, loss or theft of any username, password or access key, or any other known or suspected breach of security.

3.3 Appropriate Use of the SaaS. While Seats may be used by the appropriate User(s) that You authorize, You may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Gateway’s prior written consent. You agree not to submit to the SaaS any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third-party proprietary rights, invasive of personal privacy, otherwise objectionable or in violation of Gateway’s AUP (collectively “Objectionable Matter”). You will be responsible to ensure that its User(s) do not submit any Objectionable Matter. In addition, Gateway reserves the right to remove any data that constitutes Objectionable Matter or violates any Gateway rules regarding appropriate use, but is not obligated to do so. You and Users will comply with all applicable laws regarding Your Data, use of the Service and the Gateway Content, including laws involving private data and any applicable export controls. Gateway reserves the right to terminate these Terms of Use for cause in case You materially breach the provisions of this Section.

3.4 Your Data. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Your Data. Gateway will not use Your Data for any purpose other than to provide the Service(s) to You and for statistical reporting purposes. Gateway may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Gateway.

3.5 Collected Data; Anonymized Data, & Analytics. You understand that the SaaS and/or the Services collects certain data, including but limited to data that You upload, and analytics around Your usage of the SaaS and/or Services (“Collected Data”). With respect to any such Collected Data provided by you to Gateway, solicited or unsolicited, directly or indirectly, so long as the Collected Data is used in an anonymous manner, without revealing the actual information contained therein (“Anonymized Data”), Gateway shall not be restricted and has the express right to derive, create, alter add-to or modify the SaaS and/or the Services by using the information and know-how gained from such Anonymized Data, for commercial and/or academic endeavors. Nothing stated herein is intended to, nor shall restrict Gateway’s right to use, profit, distribute, disclose, publish, or otherwise exploit any such modifications, alterations or any other changes to the SaaS and/or Services as a result of Gateway’s use of such Anonymized Data. It is specifically acknowledged and agreed between the parties, hereto, that no compensation, whatsoever, is or shall be due to You for the Collected Data, Anonymized Date, or use thereof.

3.6 Feedback. Gateway shall have no obligation to incorporate into the SaaS and/or Services any suggestions or ideas provided by You, directly or indirectly, related to the SaaS and/or Services (“Feedback”) and You shall have no obligation to provide such Feedback. With respect to any Feedback provided to Core by the Customer, solicited or unsolicited, nothing in the Agreement or in the parties’ dealings arising out of or related to the Agreement will restrict Core’s right to use, profit, distribute, disclose, publish, or otherwise exploit any Feedback. It is specifically acknowledged and agreed between the Parties that no compensation, whatsoever, is or shall be due to Customer for any Feedback or use thereof.

3.7 Termination or Suspension of Services. Gateway reserves the right to suspend or terminate, immediately without notification, any of Your or an individual User’s access to the SaaS that, which in Gateway’s reasonable opinion, (i) is or has the potential of disrupting or causing harm to Gateway’s or any third-party’s computers, networks, systems or infrastructure; (ii) is in violation of the Gateway AUP; (iii) is in violation of state, federal and/or international laws/policies regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003; (iv) is in violation of state, federal and/or international laws/policies regarding data protection including, without limitation, the Massachusetts Information Security Regulations (201 Code of Mass. Regs. 17.00 et seq.), EU General Data Protection Regulation 2016/679, the HIPAA Security and Privacy Rule (45 CFR Parts 160, 162 & 164); (v) the use of Services adversely effects Gateway’s or its suppliers’ equipment, security network infrastructure, or service(s) to others; (vi) a court or other governmental authority having jurisdiction issues an order prohibiting Gateway from furnishing the Services to You; or (vii) You fail to pay undisputed charges for the Services after being given notice; provided Fees will continue to accrue for Your Data notwithstanding any suspension and You will remain liable for all Fees; and/or (viii) violates Section 2 “License Grant & Restrictions” or Section 3.3 “Appropriate Use of the SaaS”.

4. Prices and Payment.

4.1 Prices & Payment.  All invoices shall be due and payable in US Dollars within fifteen (15) days after invoice date. Gateway may impose late charges on overdue payments at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate legally permitted by law, calculated from the date payment was due until the date payment is made and all expenses incurred in collection, including reasonable attorneys’ fees.  In addition to other applicable remedies, if Your account becomes delinquent (falls into arrears), Gateway reserves the right to suspend and/or terminate the Services, Your access to the SaaS, and/or terminate these Terms of Use, upon five (5) days email notice. Upon default by You, Gateway shall have other rights and remedies as may be provided by law.  If access to the SaaS is withheld in accordance with the foregoing, in order to reinstate such SaaS, You shall be responsible for paying all Fees from the date that such Fees were delinquent through to the then-current date and any outstanding amounts accrued hereunder. Except in the event of Termination for Material Breach under Section 9.3 “Termination for Material Breach”, You acknowledge and agree that all prepaid Fees are non-refundable.

4.2 Taxes. All Fees are exclusive of sales, use, value-added or other excise tax, however designated or levied, and therefore, are subject to an increase in an amount equal to any tax Gateway may be required to collect or pay (excluding taxes on its income). You shall be liable for payment of all local state and federal sales, use, excise, personal property or other similar taxes or duties that are levied upon and related to the performance of obligations or exercise of rights under these Terms of Use.  Gateway may be required to collect and remit taxes from You, unless You provide Gateway with a valid tax exemption certificate. Gateway will invoice You for all such taxes based on Software and/or Services provided hereunder. In no event will either party be responsible for any taxes levied against the other party’s net income.

5. Intellectual Property & Protections.

Gateway shall have sole and exclusive ownership of all right, title, and interest in and to the Gateway Content, documentation, Services, Software and Web-Site and all copies thereof including all derivations, modifications and enhancements thereto (including but not limited to ownership of all intellectual property rights). These Terms of Use do not provide You with title or ownership of the Gateway Content, documentation, Services, Software and Web-Site, but only a right of limited use.

All Your Data submitted by You to Gateway, whether posted by You or by Users, will remain the sole property of You or such Users to the full extent provided by law.

6. Warranties.

6.1 SaaS Warranty & SLA. In exchange for prompt payment of Fees, as set forth in the applicable Order, due hereunder, and so long as You are not in material breach of any section of these Terms of Use, Gateway shall make available to You the Software indicated in the applicable Order on an on-demand SaaS basis, due hereunder. Gateway hereby represents and warrants that (i) the Software, and the Software as a Service will perform in all substantial and material respects to the functionality as described in applicable online product specifications available via Gateway’s Web-Site; (ii) Gateway will use commercially reasonable security measures, in accordance with then-current industry standards, to protect Your Data against unauthorized disclosure or use; and (iii)  the Software shall be available for Your use on a SaaS basis during the SaaS Term of these Terms of Use in accordance with the SLA metrics set forth in the applicable Order.

6.2 Professional Services Warranty. Gateway warrants that all Professional Services shall be performed in a professional and workmanlike manner, consistent with then-current industry standards (“Professional Services Warranty”). Your exclusive remedy for a breach of the Professional Services Warranty shall be, at Gateway’s option, either to (i) re-perform such Professional Services and/or training; or (ii) to provide You a refund for the allegedly defective Professional Services.  Such remedy shall only be available if You notify Gateway in writing within thirty (30) days of the completion of such professional services and/or training.

6.3 Warranty Exclusions & Exclusive Remedy. The warranties stated herein shall not include nor extend to (i) any improper use, operation or neglect of the Software, SaaS and/or Services; (ii) the unauthorized modification of the Software, SaaS and/or Services or the merger of the Software (in whole or part) or SaaS with any other software or equipment by You not previously approved by Gateway; (iii) any material breach by You of Your obligations under these Terms of Use; and/or (iv) use of the Software or Services for any purpose not set out on the Web-Site, in the documentation, Section 2, “License Grant & Restrictions”, and/or Section 3.3 “Appropriate Use of the SaaS”. All remedies stated in this Section 6, “Warranties” are Your sole and exclusive remedy and shall be Gateway’s entire liability in contract, tort, or otherwise.

7. Limitation of Liability; Exclusion of Consequential Damages.

7.1 NO FURTHER WARRANTIES. THE SOFTWARE, SAAS AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, GATEWAY SHALL HAVE NO LIABILITY FOR THE SOFTWARE, SAAS OR ANY SERVICES PROVIDED IN FURTHERANCE OF THESE TERMS OF USE; GATEWAY MAKES AND YOU RECEIVE NO FURTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THESE TERMS OF USE OR ANY OTHER COMMUNICATION; AND GATEWAY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. GATEWAY DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. GATEWAY IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY YOU OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET. The Services may include gateways, links or other functionality that allows You and/or User(s) to access third-party services (“Third party Services”) and/or third-party software, content and materials (“Third party Materials”). Gateway does not supply and is not responsible for any Third-party Services or Third-party Materials, which may be subject to their own licenses, end-user Terms of Uses, privacy and security policies, and/or terms of use.  GATEWAY MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD-PARTY MATERIALS.

7.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

7.3 LIMITATION OF LIABILITY.  GATEWAY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO GATEWAY’S GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT. IF GATEWAY IS FOUND LIABLE, THE AMOUNT OF GATEWAY’S MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES ACTUALLY PAID TO GATEWAY FOR THE RELEVANT SOFTWARE WITHIN THE PRIOR THREE (3) MONTHS FROM WHICH SUCH CLAIM ARISES. IF THE DATA TRANSMITTED IS INSURED BY YOU, THE YOU SHALL CAUSE ITS INSURERS OF SUCH DATA TO WAIVE ANY RIGHT OF SUBROGATION AGAINST GATEWAY.

7.4 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.   BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

8. Indemnification.

8.1 Indemnification. You will defend, indemnify, and hold Gateway (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that Your Data or other data or information supplied by You infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (ii) arising out of breach of Section 2, “License Grant & Restrictions”, Sections 3.2 “Passwords and Access”, and 3.3 “Appropriate Use of the Service”, stated above.

8.2. Indemnification Procedure. In case of any claim that is subject to indemnification under Terms of Use, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under these Terms of Use. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by these Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

9. Termination.

9.1 Term. These Terms of Use shall commence upon the Effective Date and continue until the end of the SaaS Term(s), as defined in the applicable Order(s), which incorporates these Terms of Use by reference; thereafter, these Terms of Use shall continue (until (i) these Terms of Use and all Orders are terminated under Sections 9.2 “Termination for Convenience”, or Section 9.3 “Termination for Material Breach”, or (ii) either party terminates all then-current Order(s) hereunder by providing the other party notice of such party’s intent to not renew such Order (“Term”), such notice must be provided, in writing (specifically excluding email), no less than thirty (30)  days prior to the end of the then-current applicable SaaS Term(s) Order. In no event shall these Terms of Use be considered terminated until such time that all Orders hereunder have been terminated. If not terminated in accordance with this Section 9 “Termination”, each Order hereunder shall automatically renew on a SaaS Term-to-SaaS Term basis. You specifically acknowledge that except for under Section 6 “Service Level Assurances & Warranties” that all prepaid fees are non- refundable.

9.2 Termination for Convenience. Unless otherwise stated in the applicable Order, either party may terminate any applicable Order for convenience after the conclusion of the initial SaaS Term, as defined therein, by providing not less than ninety (90) days prior written notice. If the applicable Order provides for ongoing payments during the SaaS Term, and You terminate prior to the end of the SaaS Term under this Section 9.2 “Termination for Convenience”, You agree to pay the full amount that would have become due during the Term. Such payment shall be due in full upon termination.

9.3 Termination for Material Breach. This Terms of Use, or any individual Order hereunder and related licenses may be terminated by either party upon thirty (30) days prior written notice for a material breach by the other party, unless such other party cures the breach within the thirty (30) days’ notification period. You agree upon any termination to certifying that You shall no longer access the Software on a SaaS basis. Termination of these Terms of Use do not relieve You of any outstanding payments due or any liability arising prior to termination.

10. Post-Termination Procedures.

In the event that any Order hereto is terminated, for any reason, You agree and acknowledges that Gateway has no obligation to retain and may delete Your Data that remains in Gateway’s possession or control more than thirty (30) days after any termination of individual Order(s). You shall pay Gateway’s applicable charges on a time and materials basis at Gateway’s then-current rates for any further post-termination support beyond that stated in this Section 10, “Post-Termination Services”.

11. Confidentiality.

11.1 Confidential Information. “Confidential Information” means any proprietary, confidential and/or trade secret information of the disclosing party (“Discloser”) and/or others possessed by the Discloser relating to, among other things, the Discloser’s products, technology, specifications, manufacturing methods, know-how, business or marketing plans, or business relationships. Confidential Information may be disclosed either in documentary form (including without limitation traditional tangible media such as written documents, photographs and drawings, and intangible media such as diskettes and other magnetic or electronic data), or orally or visually or in other non-documentary form (including without limitation presentations, displays or inspections of writings, designs, drawings, photographs, models, prototypes, samples or facilities).

11.2 Confidential Disclosure. Confidential Information disclosed in documentary form shall be stamped “Confidential Information” or in some other manner clearly indicating that it is confidential or proprietary. The Discloser must confirm by written notice to the receiving party (“Receiver”) within thirty (30) days of disclosure that Confidential Information disclosed orally, visually or in any other non-documentary form is “Confidential Information.” Notwithstanding the foregoing, the following shall be considered Confidential Information if disclosed orally or in writing by either party during discussions concerning the business relationship: (i) all inventions, discoveries, know-how, techniques, devices, ideas, research, software implementation methods, practices, processes, systems, formulae, designs, products, projects, computer programs, improvements and developments which have not been generally available to the public; (ii) all client or Your lists, trade secrets, or other information pertaining to the financial condition, business affairs or prospects of the parties including, without limitation, information relative to You, suppliers or other parties with which a party has a business relationship, samples, sketches, bulletins, correspondence, company forms and records (including financial statements and product specification sheets), information concerning sources of supply, costs of manufacture and sale and applications of equipment, whether or not published or unpublished, confidential or protected or susceptible to protection by patent, trademark, copyright or any other form of legal protection and whether or not any attempt has been made to secure such protection; (iii) any of the foregoing information developed by or proprietary to clients of either party; and/or (iv) all information that a reasonable prudent person would recognize as confidential when provided to Recipient.

11.3 Exclusions.  Confidential Information shall not include information that: (a) was in the public domain when disclosed; (b) becomes public domain after disclosure, other than as a result of the Receiver’s violation of these Terms of Use; (c) was in the Receiver’s possession when disclosed and was not acquired directly or indirectly from the Discloser; (d) is shown by written evidence to have been developed by the Receiver independently after disclosure without benefit of the Confidential Information; or (e) was received after disclosure from a third party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the Discloser.

11.4 Disclosures & Care. The Receiver: (i) will not disclose Confidential Information (except to its employees or to potential suppliers or subcontractors which are bound by a written confidentiality Terms of Use) and will otherwise comply with Receiver’s obligations under these Terms of Use; (ii) will not use Confidential Information except for the purposes contemplated by these Terms of Use; (iii) will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, and in any event not less than a reasonable degree of care under the circumstances; and (iv) will make copies of Confidential Information only as needed for such purpose, all of which shall include any existing markings indicating that they are Confidential Information of the Discloser, or shall have markings supplied by the Receiver.

12. Subpoena.

Gateway is authorized to comply with any subpoena or similar order related to the data in its possession, provided that Gateway notifies You promptly upon receipt thereof, unless such notice is prohibited by law.  You shall pay Gateway’s applicable charges on a time and materials basis at Gateway’s then-current rates for such compliance. Gateway will cooperate with Your efforts to quash or limit any subpoena, at Your expense.

13. Privacy.

Gateway agrees to implement its privacy policies in effect from time to time. Gateway’s privacy policies can be accessed on Gateway’s Web-Site. Gateway reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

14. Audit.

During the SaaS Term, You will maintain records reasonably required to verify Your compliance with these Terms of Use. Upon at least thirty (30) days’ notice to You, and not less than twelve (12) months since a prior audit, Gateway may audit and inspect Your applicable records at Your principal place of business, during Your normal business hours and in such a manner as to avoid unreasonable interference with Your business operations. In the event that Gateway determines that You have underpaid any payment due under these Terms of Use, Gateway shall notify You in writing of the alleged discrepancy. Any undisputed underpayment by You shall be paid to Gateway (plus interest at the lesser of one- and one-half percent (1.5 %) per month or the highest rate permitted by law), within thirty (30) days of such determination.

15. General Provisions.

15.1 Entire Terms of Use; Integration. This Terms of Use and the applicable Order(s), which reference these Terms of Use, represent the entire understanding between the parties on the subject matter hereof and supersede all prior discussions, Terms of Uses and understandings of every kind and nature between the parties.  Neither party shall be deemed the drafter of these Terms of Use. No modification of these Terms of Use shall be effective unless in writing and signed by both parties. All additional and conflicting terms and conditions presented with or in any communication, including but not limited to Your purchases order (“P.O.”), except with respect to price, quantity and location specified in a P.O., are hereby rejected and shall be deemed null and void.

15.2 Headings & Order of Precedence. All headings used herein are for convenience of reference only and are not a part of these Terms of Use, nor shall they in any way effect the interpretation hereof. If there is any conflict between these Terms of Use and any Order hereto, the order of precedence shall be that these Order shall supersede and then the Terms of Use.

15.3 Force Majeure. Neither party shall be liable for any failure or delay in performing services or any other obligation under these Terms of Use, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such party’s control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such party’s reasonable control.

15.4 Relationship with Third parties. This Terms of Use governs the relationship between Gateway and You. No other end user or other person or entity not a party to these Terms of Use shall be considered a third-party beneficiary of these Terms of Use.

15.5 Severability & Survival.  The illegality or unenforceability of any provision of these Terms of Use shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of these Terms of Use be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afford by law in accordance with the intent of the applicable provision. The following provisions shall survive any termination of these Terms of Use; 4, “Prices & Payment”; 5, “Intellectual Property & Protections”; 7, “Limitation of Liability; Exclusion of Consequential Damages”; 10, “Post-Termination Procedures”; 11, “Confidentiality”; and 15, “General Provisions”.

15.6 Assignment. Neither party may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except in the case of a sale of either party’s business whether by merger, sale of assets, sale of stock or otherwise, or except with the prior written consent of the other party, which consent will not be unreasonably withheld.  Notwithstanding the foregoing, You may not assign these Terms of Use to a direct competitor of Gateway. Any attempted assignment or delegation outside these exceptions or without such written consent shall be voidable by the non-assigning party.  This Terms of Use may also be terminated without a notice period by a written communication to You if as the result of any transaction a change of control occurs, directly or indirectly, such that a competitor of Gateway controls You or any entity, which becomes a party to these Terms of Use, directly or indirectly.  This Terms of Use binds the parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.

15.7 Applicable Law & Disputes. This Terms of Use and all resulting claims and/or counterclaims shall be governed, construed, enforced and performed in accordance with the laws of the Commonwealth of Massachusetts, United States of America, without reference and/or regard to its conflicts of laws principles. Any dispute arising out of or in connection or associated with these Terms of Use shall be referred to and finally resolved by arbitration in accordance with the Rules of the International Chamber of Commerce (“ICC”) then in force; provided, however, that either party may, at its sole discretion, seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect its proprietary or confidential information. The language used in the arbitral proceedings, and the governing language of the Terms of Use, shall be English. Unless otherwise mutually agreed upon in writing by the parties, the site of the Arbitration shall be in Boston, Massachusetts, U.S.A.  Judgment upon the award of the arbitration may be entered in any court having jurisdiction thereof. Both parties specifically agree that the U.N. Convention on the International Sale of Goods, and the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to any and all actions performed by either party hereunder in furtherance of these Terms of Use.

15.8 Export Restrictions. You acknowledge that the Software and/or Services are subject to United States export control laws. You shall comply with all applicable export laws, obtain all applicable export licenses and will not export or re-export any part of the Software Products to any country in violation of such restrictions or any country that may be subject to an embargo by the United States.

15.9 Government End-User Notice.  The Software 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 and 48 C.F.R. § 227.7202, as applicable.  Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.

15.10 Waiver. Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

15.11 Notice. All notices under these Terms of Use shall be in English and in writing, which shall include but not be limited to electronic mail. With respect to notice to You it shall be given by electronic mail, sent delivery receipt and read receipt to the Authorized Contact(s), such notices shall be deemed given upon the date of the delivery receipt. With respect to notice to Gateway it shall be given by electronic mail, sent delivery receipt and read receipt, to  legal@nullgatewaychecker.com. Such notice shall be deemed given upon the date that Gateway provides a read receipt to you.

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