— PLEASE READ THESE TERMS OF SERVICE CAREFULLY —
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:
“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 utilize 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.
“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 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).
2. License Grant & Restrictions.
3. Operational Concerns.
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.
3.5 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 Gateway by You, solicited or unsolicited, nothing in the Agreement or in the dealings of You and Gateway arising out of or related to the Agreement will restrict Gateway’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 You 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.
5. Intellectual Property & Protections.
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.
7. Limitation of Liability; Exclusion of Consequential Damages.
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.
8.1 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.
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.
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”.
11.1 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.
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.
15. General Provisions.
15.9 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.
15.10 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.
15.11 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.