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BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (BY CLICKING ON THE “AGREE” (OR SIMILAR BUTTON OR CHECKBOX) OR ACCESSING OR USING THE CONTRAST SECURITY ENTERPRISE OFFERING (THE “OFFERING”), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE CONTRAST SECURITY OFFERING. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE ACCESSING OR USING THE CONTRAST SECURITY SELF-SERVICE OFFERINGS, THEN THE APPLICABLE TERMS FOUND HERE GOVERN YOUR USE OF THOSE SELF-SERVICE OFFERINGS. IF YOU ARE USING THE OFFERING AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These Contrast Security Enterprise Terms of Service (“Agreement”) are entered into by and between Contrast Security, Inc. (“Contrast” or “we” or “our”) and the entity or person placing an order for, or accessing, the Contrast Security Enterprise offering (“Customer” or “you” or “your”). This Agreement consists of the terms and conditions set forth below and any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced as part of this Agreement, and any Orders that reference this Agreement.
The “Effective Date” of this Agreement is the date of Customer’s initial access of the Contrast Security Enterprise offering (the “Service”) through any online provisioning, registration or order process. This Agreement will govern Customer’s initial purchase or access as well as any future purchases made by Customer, whether through renewal or otherwise. Contrast and Customer are each ‘a Party’ and together, are ‘the Parties’.
1. Order Forms; Grant of License
1.1. Contrast and Customer may mutually execute one or more written order forms which reference this Agreement (each, an “Order”), and if Customer issues a purchase order that references a Contrast quote that has not expired, the quote shall constitute an ‘Order’. Each Order shall be subject to the terms of this of the Agreement, to the exclusion of any other terms in any Customer purchase order or other similar document that are different from or additional to the terms and conditions set forth in this Agreement, an Order or an SOW. Such different or additional terms and conditions will not become a part of the agreement between the Parties notwithstanding any subsequent acknowledgement, invoice or access to the Services by Contrast. If Customer purchases Contrast’s Services through a Reseller, then the Services will be made available to Customer pursuant to an Order between Contrast and the Reseller or a distributor which resells the Services to the Reseller. Customer shall use the Services only as provided herein and only in accordance with Contrast’s official user documentation set forth at https://docs.contrastsecurity.com/ (the “Documentation”).
1.2. Services. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order) Contrast shall be deemed to grant Customer a personal, non-sublicensable, non-exclusive right to access and use the Services specified on the applicable Order, solely for the duration of the applicable term of such Order, for the internal business purposes of Customer. Only Users may access or use the Services and Customer will not allow any third party to access or use the Services. Customer may only use the Services licensed by Application to manage and analyze the maximum aggregate number of Applications set forth on the applicable Order and, once Customer has used the Service to manage or analyze a particular Application, that Application will permanently count toward the number of maximum allowable Applications and may not be replaced by another Application. For purposes of this Agreement: (i) “Application” shall have the meanings set forth at www.contrastsecurity.com/appdefinition; and (ii) “User” means an employee, contractor or agent of Customer to whom Customer has provisioned user access to a Contrast Service pursuant to this Agreement.
2. Support; Service Levels
Contrast will provide support and uptime for the Services in accordance with Contrast’s the Support Policy set forth at www.contrastsecurity.com/tos. Contrast’s Platform Availability Policy is found here: https://www.contrastsecurity.com/availability-policy.
3. Service Updates
From time to time, at its own discretion, Contrast may provide upgrades, patches, enhancements, or fixes for the Services to its customers, as applicable, without additional charge (“Updates”), and such Updates will become part of the Service and subject to this Agreement.
4. Ownership; Feedback
As between the parties, Contrast retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Contrast for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services”. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may, from time to time, provide suggestions, comments or other feedback to Contrast with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Contrast a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Contrast of any confidentiality obligations it may have hereunder with respect to Customer Data. Nothing in this Agreement shall be construed to preclude Contrast from developing, using, marketing, licensing, and/or selling any product or service that is developed without use of the Confidential Information of Customer.
5. Fees; Invoicing, Payment
Customer (or its Reseller) shall pay Contrast the fees for the Services as set forth in each Order (“Fees”). Unless otherwise specified in an Order, for purchases made directly with Contrast, all Fees shall be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Customer shall provide accurate, current, and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly notify Contrast if this information should change. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services other than taxes based on Contrast’s net income. Customer and Contrast shall agree in advance what taxes may be subject to withholding. Contrast shall then separately itemize in its invoices: (i) the amount payable for the Services; and (ii) the amount payable to the relevant authorities as taxes. Customer shall then pay to Contrast the amount payable for the Services (without any deduction). Customer and Contrast will cooperate in providing the other Party with applicable forms and other information that the other Party might reasonably require in dealing with their respective taxing authorities. All Fees paid are non-refundable and are not subject to set-off.
6. Restrictions.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any User or a third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, display, republish, or create derivative works based on the Services or the underlying software; (iii) copy, rent, lease, distribute, pledge, assign, resell, sublicense, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Contrast product or Services (or copy any ideas, features, functions or graphics of the Services); (vii) disclose to any third party any benchmarking or comparative study involving any Service, or (viii) attempt to probe, scan or test the vulnerability of any Contrast Service or attempt to breach the security or authentication measures of any Contrast Service. Customer shall not upload or transmit to any Contrast Service any material that is illegal or that is intended to adversely affect the operation of any computer software, hardware or network. Customer (i) shall use the Services in compliance with all applicable local, state, national and international laws, treaties and regulations (including those related to data privacy laws); (ii) shall not possess or use any Services, or allow the transfer, transmission, export, or re-export of any Services or portion thereof, in violation of any export control laws, sanctions or regulations administered by the U.S. Department of Commerce, the U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency; and (iii) shall not use or access the Services in a manner that violates any third party’s intellectual property, contractual or other proprietary rights. Additionally, Customer shall not: (i) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services or gain unauthorized access to any part of the Services or their related systems or networks; or (ii) bypass any measures Contrast may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Prior to disposing of any media or apparatus containing any part of the Service, Customer shall completely destroy any Service contained therein. All limitations and restrictions on Services in this Agreement also apply to the relevant Documentation.
7. Customer Data
For purposes of this Agreement, “Customer Data” shall mean any code (source, binary or object), data, information or material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data (as defined below), including all intellectual property rights therein. Customer is responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and the necessary rights to provide Customer Data to Contrast. Customer warrants that it has all rights, licenses and consents necessary for Contrast to process the Customer Data (including personal information) as permitted under this Agreement. Contrast shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services. Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer’s hosted data (as this relates to SaaS Services), shall be automatically deleted within 37 days after termination or expiration of this Agreement and all applicable Order(s). It will be Customer’s responsibility to download hosted Customer Data prior to such termination. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Contrast may (i) internally use (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for Contrast’s business purposes. “Aggregated Anonymous Data” means data submitted to, collected by or generated by Contrast in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. Customer shall own and hereby reserves all right, title and interest in the Customer Data.
8. Data Protection
8.1. Contrast may collect certain information from Customer in connection with Customer’s use of the Services and otherwise in connection with this Agreement. Such information might be considered ‘personal information’ under applicable data protection laws. All such ‘personal information’ will be used by Contrast in accordance with Contrast’s then-current Privacy Policy, found at https://www.contrastsecurity.com/privacy-matters.
8.2. Customer will not transmit, upload or store Sensitive Information in or to any Contrast Service. For the purpose of this Agreement, “Sensitive Information” means: (a) the categories of data enumerated in Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, and any successor legislation, (b) protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented), (c) credit, debit or other payment card data, including bank account numbers, (d) social security, driver’s license or other government identification numbers or cards, or (e) other information subject to the Children’s Online Privacy Protection Act or Gramm-Leach-Blilely Act, as may be amended or supplemented. Contrast shall not be responsible for Sensitive Information.
8.3. Contrast maintains a list of sub-processors here: https://www.contrastsecurity.com/privacy-sub-processors-listing. Customer can register at the link in the previous sentence to receive notifications of changes to the list of sub-processors. Contrast shall remain responsible for all acts, omissions and breaches of its sub-processors as if they were its own.
8.4. Customer is responsible for managing access to Contrast’s hosted platform from Customer’s (and Service Recipients’) systems and networks and for any access of the Services through Customer’s account. Customer will maintain the confidentiality of account credentials used to access the Services. Customer will prevent unauthorized use of the Services and promptly notify Contrast of any unauthorized use. Customer may not permit sharing of accounts and passwords.
9. Trials and Evaluations
9.1. Trials and Evaluations. Where Services are provided as trials or evaluations at no cost to Customer, Customer shall not be entitled to any maintenance, support, warranties, or indemnification. Contrast shall be entitled to terminate such free services at any time, without requiring cause. Customer acknowledges and understands that Customer Data that is hosted will be automatically deleted following termination of the Services. It will be Customer’s responsibility to download hosted Customer Data prior to such termination. Contrast will not be responsible for any lost data or components. Except as otherwise stated in this Section 9, the other sections of this Agreement shall apply to the Services (except for the sections that relate to payment).
9.2. Limitations. Notwithstanding anything to the contrary in this Agreement, Contrast does not provide maintenance and support, warranties, or indemnification for trials and evaluations.
10. Professional Services
10.1. Scope. Should Contrast provide Professional Services to Customer as set forth in one or more Statements of Work (“Professional Services”), such Professional Services and the SOW(s) shall be subject to the terms of this Agreement. Anything produced by, resulting from or arising in the course of performance of such Statements of Work shall be deemed the property of Contrast (“SOW Products”). A “Statement of Work” or a “SOW” is a document executed by both parties which references this Agreement and sets forth Professional Services to be provided thereunder.
10.2. Effects of Termination on an SOW. Subject to any termination conditions and/or payments specified in the applicable SOW, upon termination of this Agreement and/or an SOW, Contrast will be entitled to be paid for all work performed, including Fees and expenses, up to the effective date of termination.
10.3. Professional Services Fees. Customer agrees to pay Contrast for the Professional Services in accordance with the rates set forth in the applicable Order and/or SOW. Unless otherwise set forth in an SOW, all Professional Services fees will be invoiced in advance and Customer shall pay Contrast’s invoice within thirty (30) days of receipt thereof. Expenses incurred by Contrast pursuant to an SOW, will be subject to Customer’s approval in advance. Customer shall reimburse Contrast for such expenses, subject to submission by Contrast of receipts or other evidence.
10.4. Ownership relating to Professional Services. As related to Professional Services, Customer shall retain ownership of all data supplied solely by it. However, as between the parties, unless expressly stated otherwise in an SOW: (i) Contrast will own all intellectual property rights with respect to SOW Products or derivatives, enhancements or modifications of Contrast’s products or services; (ii) all such rights will be deemed retained by Contrast or assigned to Contrast by Customer; and (iii) Contrast shall not be deemed to make any assignment of any sort to Customer under this Agreement or an SOW. Subject to the terms and conditions of this Agreement and any applicable SOW (including payment of all fees to Contrast), to the extent that in order to receive the intended benefit of Professional Services Customer needs to be granted a right of use or access, the provision of Professional Services will include a limited, nonexclusive, personal, non-transferable and non-sublicensable right to access or use the SOW Product(s) solely for Customer’s internal business, as contemplated by the applicable SOW. Notwithstanding anything to the contrary in this Agreement, Contrast shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing Professional Services or the other services that might be provided from time to time by Contrast to Customer. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another Customer.
11. Identifying Customer as Client
During the Order Term, Customer grants Contrast the limited right to use Customer’s corporate names, logos, and trademarks (“Marks”) in Contrast’s websites and marketing materials for the sole purpose of identifying Customer as a client. Contrast will use the Marks only in a manner that complies in all material respects with Customer’s trademark usage policies that may be provided by Customer to Contrast from time to time.
12. Term; Termination for Cause
Unless terminated earlier pursuant to the terms and conditions of this Agreement, this Agreement shall commence on the Effective Date and remain in force for as long as any Order Form and/or SOW is in effect, provided that this Agreement will be reinstated automatically if Customer enters into a subsequent Order or SOW referencing this Agreement. Unless otherwise terminated in accordance with the terms of this Agreement, when the term stated in an Order expires (“Initial Order Term”), such Order will renew automatically for successive one (1) year periods (a “Renewal Term”) based on the previous Order terms and conditions, unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the Initial Order Term or the Renewal Term, as applicable. Fees for each Renewal Term will be subject to a price increase effective upon the effective date of the applicable Renewal Term not to exceed seven percent (7%) (“Renewal Price Increase”). In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Contrast may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to, or material degradation of, the Services which interferes with Contrast’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Contrast shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Contrast shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Contrast shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
13. Indemnification
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its affiliates’ employees, consultants, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim by such an unaffiliated third party (“Claim”) that (i) the Customer Data or Customer’s use of the Services (in the case of Customer as Indemnitor), or (ii) the Services (in the case of Contrast as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any Claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any Claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Contrast do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Contrast, (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Contrast, (iv) combined with other products, processes or materials not provided by Contrast (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
14. Confidentiality
14.1. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (a) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (b) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). Confidential Information of Contrast includes, but is not limited to, non-public information regarding features, functionality and performance of Contrast Services. A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. Recipient shall protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its Affiliates, agents and independent contractors with a need to know in order to fulfill the purpose of this Agreement and who have signed a nondisclosure agreement at least as protective of the Discloser’s rights as this Agreement. ors with a need to know in order to fulfill the purpose of this Agreement and who have signed a nondisclosure agreement at least as protective of the Discloser’s rights as this Agreement.
14.2. This provision imposes no obligation upon a Recipient with respect to Confidential Information which: (a) is or becomes public knowledge through no fault of the Recipient; (b) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality is; (c) rightfully received by the Recipient without any duty of confidentiality; (d) disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (e) independently developed by the Recipient without use of the Confidential Information. The Recipient may disclose the Discloser's Confidential Information as required by law or court order provided: (i) to the extent legally permissible, the Recipient promptly notifies the Discloser in writing of the requirement for disclosure; and (ii) discloses only as much of the Confidential Information as is required. Upon written request from the Discloser, the Recipient shall certify destruction of the Discloser’s Confidential Information. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.
14.3. The obligations in this Section 14 shall survive the expiry or termination of this Agreement.
15. Warranty; Disclaimer and Exclusive Remedy
Contrast represents and warrants that, during the applicable Order Term, the Services will operate in substantial conformance with the Documentation. As Customer’s sole remedy (and Contrast’s sole liability) for any breach of the warranty set forth in the foregoing sentence, Contrast shall use commercially reasonable efforts to correct the applicable nonconformance. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
16. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT. EXCEPT FOR LIABILITY CAUSED BY CONTRAST’S INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION OBLIGATIONS IN SECTION 13(ii), CUSTOMER’S DATA INFRINGEMENT INDEMNITY IN SECTION 13(i), OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID (OR PAYABLE) BY CUSTOMER TO CONTRAST HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. THIS SECTION 16 IS NOT INTENDED TO AND WILL NOT BE CONSTRUED AS EXCLUDING OR LIMITING ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW, INCLUDING LIABILITY FOR (A) DEATH OR BODILY INJURY CAUSED BY A PARTY’S NEGLIGENCE; OR (B) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
17. Third Party Services
The Services may be linked to third-party websites and other third-party services (collectively, “Third Party Services”). Such Third Party Services are independent of the Services. Customer acknowledges that Contrast has no control over such Third Party Services and that Contrast is not responsible for the availability of Third Party Services, and has no responsibility or liability for any goods, services, data or other materials available on or through such Third Party Services.
18. Entire Agreement
Any modifications to the Agreement must be in the form of a mutually signed amendment. The terms of any mutually signed amendment, and this Agreement, shall apply in that order of precedence in the event of any conflict between or among such documents. Together such terms are the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any previous or contemporaneous agreement, proposal, commitment, representation, or other communication (whether oral, written, or electronic) between the parties regarding such subject matter. This Agreement prevails over any conflicting or additional terms of any purchase order, acknowledgement, or confirmation or other document issued by Customer, even if signed and returned.
19. Choice of Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara, California.
20. Notices
All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the most recent Order. Either party may update its address set forth above by giving notice in accordance with this section.
21. Force Majeure
Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
22. Assignment and Subcontracting
Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Contrast may utilize subcontractors in the performance of its obligations hereunder. Contrast shall remain responsible for all acts, omissions and breaches of its sub-contractors as if they were its own. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
23. Enforceability
In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
