Portal – End User License Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE NOVAWATCH PORTAL OR ANY PORTION THEREOF. BY CLICKING ON “I AGREE” OR BY ACCESSING OR USING THE NOVAWATCH PORTAL OR ANY PORTION THEREOF, YOU, ON BEHALF OF THE CLIENT, ACKNOWLEDGE AND CONFIRM THAT: (A) YOU HAVE FULL AUTHORITY FROM THE CLIENT TO BIND THE CLIENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (B) YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (C) CLIENT AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGES THAT THIS AGREEMENT IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN NOVAWATCH AND CLIENT. IF YOU OR THE CLIENT WHOM YOU ARE REPRESENTING ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PRECEDING ACKNOWLEDGEMENT AND AGREEMENT, THEN YOU MUST NOT SELECT THE ‘I AGREE’ BUTTON ASSOCIATED WITH THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE NOVAWATCH PORTAL OR ANY PORTION THEREOF; NOVAWATCH DOES NOT AND WILL NOT GRANT YOU OR THE CLIENT ANY RIGHT OR LICENSE TO ACCESS OR USE THE NOVAWATCH PORTAL OR ANY PORTION THEREOF.

1. SERVICES

The Novawatch Portal (“Portal”) Software Subscription Terms and Conditions (“Portal Terms”) governs all access to and use of the Novawatch online portal, software modules and interactive computer service for managed security services, functionality, web-services, supplements, add-on components, corrections, bug fixes, modifications, enhancements, updates, new versions or releases that Novawatch, Inc.(“Novawatch”) subsequently may make available (collectively, “Novawatch Portal”), and constitutes a binding agreement between the entity for whom the Novawatch Portal will be accessed and used (the “Client”), including without limitation all of Client’s personnel who access or use the Novawatch Portal, and Novawatch.

1.1 Subscription Term. This subscription entitles Client to access and use the Novawatch Portal, subject to the terms of this Agreement, for the term specified in your Service Order, Statement of Work, Proposal, or Contract (“Subscription Term”). All use of the Novawatch Portal is subject to the Novawatch Standard Terms and Conditions of Service, which are incorporated herein by reference.

1.2 License Grant. Subject to the terms and conditions of this Agreement, Novawatch hereby grants to Client a limited, personal, non-exclusive, non-transferable, revocable right and license, without right to grant sublicenses, during the Subscription Term, for Client to access the Novawatch Portal electronically via the Internet and use the Novawatch Portal solely for Client’s internal security assessment purposes. Novawatch shall make the Novawatch Portal available to Client via a digital information processing, transmission and storage system (“System”) maintained by or on behalf of Novawatch. Novawatch reserves the right to modify the Novawatch Portal at any time as business needs dictate in Novawatch’s sole discretion, provided that the terms and conditions of this Agreement shall remain in effect throughout the License Term and shall govern Client’s use and obligations with respect to any modified Novawatch Portal.

1.3 License Restrictions. Any use of the Novawatch Portal not expressly permitted in this Agreement is prohibited. Client acknowledges that the Novawatch Portal and its structure, organization, and source code constitute valuable trade secrets of Novawatch and its suppliers. Client agrees that Client shall not, nor shall Client permit, assist or encourage any third party to: (a) reproduce, allow use of or access to the Novawatch Portal or sell, rent, lease, use for service bureaus, sublicense or otherwise transfer or distribute the Novawatch Portal, in whole or in part, to any third parties; (b) modify, translate, reverse engineer, decompile, or disassemble the Novawatch Portal or otherwise attempt to derive the source code for the Novawatch Portal; (c) merge the Novawatch Portal with other software; (d) copy, modify, adapt, alter, translate, enhance or otherwise modify or create derivative works of or from the Novawatch Portal; (e) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Novawatch Portal; (f) use the Novawatch Portal to develop any application or program having the same primary function as the Novawatch Portal or otherwise exercise any rights in or to the Novawatch Portal except as expressly permitted under Section 1 (License Grant) above; (g) use, upload, post or transmit via or in connection with the Novawatch Portal any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable information or content of any kind, including, without limitation, any use or transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, including violations of any patent, trade secret, copyright, trademark or other intellectual property right worldwide (“IP Rights”), privacy rights or any other rights of a third party; (h) post or transmit into or via the Novawatch Portal any information, software, material or other content that is subject to an Open Source License or that contains a virus, cancelbot, Trojan horse, worm or other harmful components; or (i) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Client does not have authorization to access or at a level exceeding Client’s authorization.

1.4 No Implied Licenses. The Novawatch Portal is licensed, not sold. All rights not expressly granted in Section 1 (License Grant) above are reserved by Novawatch, and nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Novawatch’s existing or future IP Rights.

1.5 Suspension of Access and Service. Notwithstanding anything herein to the contrary and without prejudice to any other rights, upon any actual or alleged breach of this Agreement by Client, Novawatch reserves the right, in its sole discretion and upon notice (which notice may be in e-mail form), at any time, to: (a) remove or disable access to all or any portion of the Novawatch Portal; (b) suspend Client’s access to or use of the Novawatch Portal; and/or (c) terminate this Agreement, in which case Novawatch shall have no liability of any kind for such termination, cancellation or suspension. Nothing in this Section is intended to preclude Novawatch from seeking immediate appropriate injunctive relief.

2. Equipment; Access; Availability.

2.1 Equipment. Novawatch shall be responsible for making the Novawatch Portal accessible up to the point of Novawatch’s Internet Service Provider; beyond that, Novawatch shall not be responsible for performance or operational issues experienced by Client with respect to access to or use of the Novawatch Portal. Client shall be solely responsible for, and Novawatch shall have no liability in connection with, providing, maintaining and ensuring compatibility of the Novawatch Portal with any hardware, third party software, electrical and other physical requirements to access and use the Novawatch Portal, including without limitation operating systems, telecommunications and digital transmission connections and links, routers, local area network servers, virus software, firewalls, or other equipment and services required to or desirable for access and use of the Novawatch Portal.

2.2 Authorized Users. The Novawatch Portal enables Client to register, authorize and grant access to those employees, agents, contingent workers and authorized independent contractors of Client specified by Client (each an “Authorized User”). Notwithstanding anything herein to the contrary, any breach of any terms or conditions of this Agreement by any Authorized User shall be deemed to be a breach of this Agreement by Client. Client shall be responsible and liable for the acts or omissions of each Authorized User as if such acts or omissions were Client’s own acts or omissions.

2.3 Access IDs. During the License Term, the Novawatch Portal shall permit Client to register, authorize and obtain unique and confidential login IDs, passwords and/or access codes (collectively, “Access IDs”) to allow Client and its Authorized Users to access the Novawatch Portal. Client and the Authorized Users shall maintain the confidentiality of the Access IDs and shall not disclose the Access IDs to any third party.

2.4 Availability. Novawatch shall use commercially reasonable efforts to make the Novawatch Portal available to Authorized Users pursuant to the terms and conditions of this Agreement during the License Term. Client acknowledges that from time to time the Novawatch Portal may inaccessible or inoperable for any reason, including without limitation: (a) periodic maintenance procedures, enhancements, repairs or corrections with respect to the Novawatch Portal or Server, as determined by Novawatch; (b) equipment malfunctions; (c) acts or omissions of Client its Authorized Users or its suppliers, including but not limited to scheduled or unscheduled outages of the Authorized User’s internet browser, known and persistent slow response time on an Authorized User’s internal network, or problems with Authorized User’s computer hardware or electricity; or (d) causes beyond the reasonable control of Novawatch or that are not reasonably foreseeable by Novawatch, including interruption or failure of telecommunication or digital transmission links, delays or failures due to Client’s Internet Service Provider, hostile network attacks or network congestion.

3. Ownership; Protection.

3.1 Ownership. Each party acknowledges that: (a) all right, title and interest in and to the Novawatch Portal, including without limitation all Intellectual Property (“IP”) Rights therein, are the sole and exclusive property of Novawatch and its suppliers; (b) subject to the license rights expressly set forth herein, Client receives no right, title or interest in or to the Novawatch Portal; and (c) if applicable, all title and IP Rights in and to any data or content that is not contained in the Novawatch Portal, but may be accessed through use of the Novawatch Portal, is the property of the respective content owners. If Client or any of its Authorized Users is deemed to have any ownership interest in the Novawatch Portal, including any derivative work, enhancement or other modification thereto, then Client shall assign and/or cause such Authorized User to assign, and Client does hereby assign, irrevocably and royalty-free, all of such ownership interest or other rights exclusively to Novawatch and Client shall, at Novawatch’s reasonable request and expense, complete, execute and deliver any and all documents necessary to effect or perfect such assignments.

3.2 Protection. Client shall use reasonable best efforts, which shall be no less stringent than those efforts that Client uses to protect Client’s own confidential information, trade secrets, technology, software or other similar proprietary property, to prevent any Novawatch Portal from being disclosed or used by any Authorized User or other person in any manner that would violate this Agreement. In no event shall Client take any action that might encumber or expose the Novawatch Portal, or the license rights granted in this Agreement to any claims, liens or other forms of encumbrance.

4. Security.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CLIENT SHALL BE SOLELY RESPONSIBLE FOR: (I) INPUTTING, LOADING OR OTHERWISE USING CLIENT’S INFORMATION AND DATA (COLLECTIVELY, “CLIENT DATA”) IN CONNECTION WITH THE NOVAWATCH PORTAL; (II) MAINTAINING INDEPENDENT ARCHIVAL AND BACKUP COPIES OF ALL CLIENT DATA; AND (III) ENSURING THE CONFIDENTIALITY OF CLIENT’S PASSWORDS, ACCESS IDS AND/OR MEMBER ACCOUNTS, WHICH SHALL BE ISSUED FOR THE LIMITED PURPOSE OF USING THE NOVAWATCH PORTAL PURSUANT TO THE TERMS HEREIN. NOVAWATCH SHALL HAVE NO LIABILITY TO CLIENT OR ANY OTHER PERSON FOR LOSS, DAMAGE OR DESTRUCTION OF CLIENT DATA. Client is solely responsible for any authorized or unauthorized access to and use of the Novawatch Portal via Client’s or its Authorized Users’ passwords and/or member accounts. If any of Client’s or its Authorized Users’ passwords are lost, stolen or otherwise compromised, Client shall promptly change the password or, if Client is unable to do so, Client shall notify Novawatch, whereupon Novawatch shall suspend use of such password and/or account and issue a replacement password. Notwithstanding anything herein to the contrary, Client hereby authorizes Novawatch to treat any person using Client’s or any of its Authorized Users’ passwords, Access IDs and/or member account as Client (even if such person is using such item(s) without Client’s authorization), and any resulting transactions, fees, obligations or liabilities shall be attributed to Client, until such time as Novawatch is notified by Client in writing of any unauthorized access arising under such conditions.

5. Warranties and Covenants.

5.1 Client Warranty. Client represents, warrants and covenants to Novawatch that: (a) Client has the legal power and authority to enter into and perform Client’s obligations under this Agreement; (b) Client shall comply with all terms and conditions of this Agreement, including without limitation the license restrictions set forth in Section 1.2 (License Restrictions) above; (c) Client is the owner and/or the licensee of all IP Rights relating to the Client Data and has all necessary rights to input, load and/or use such Client Data with the Novawatch Portal under the terms of this Agreement; (d) the Client Data, and Client’s use thereof in connection with the Novawatch Portal or as otherwise contemplated by this Agreement, does not, and shall not, infringe any third party’s IP Rights, privacy rights, data security rights or other rights, and shall not otherwise violate any applicable law or regulation; and (e) Client shall not use the Novawatch Portal in violation of any applicable law or regulation and shall otherwise refrain from any act or omission that will cause Novawatch to be in violation of any applicable law or regulation regarding the use of the Novawatch Portal.

5.2 Novawatch Warranty and Disclaimer. NOVAWATCH WARRANTS THAT (I) THE SOFTWARE ON THE NOVAWATCH PORTAL SHALL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DESCRIPTION FOUND AT NOVAWATCH.COM; (II) NOVAWATCH HAS FULL CORPORATE AUTHORITY SUFFICIENT TO GRANT CLIENT THE LICENSES SET FORTH IN THIS AGREEMENT; AND (III) DURING THE TERM OF THIS AGREEMENT, TO THE KNOWLEDGE OF NOVAWATCH AT THE TIME NOVAWATCH IS MAKING THE NOVAWATCH PORTAL AVAILABLE TO CLIENT, THE NOVAWATCH PORTAL SHALL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES, BUILT-IN OR OTHER USE-DRIVEN DESTRUCTIVE MECHANISMS, OR OTHER INJURIOUS OR DAMAGING FORMULAS, INSTRUCTIONS OR OTHER MATERIALS (HEREINAFTER REFERRED TO SINGULARLY OR COLLECTIVELY AS “VIRUSES”). NOVAWATCH MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE NOVAWATCH PORTAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AND/OR ANY WARRANTIES ARISING OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, NOVAWATCH DOES NOT WARRANT THAT THE NOVAWATCH PORTAL WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS OR THAT THE NOVAWATCH PORTAL COMMUNICATIONS SENT OR RECEIVED IN CONNECTION THEREWITH OR CLIENT’S USE OF THE SAME WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR COMPLETELY SECURE, NOR DOES NOVAWATCH MAKE ANY WARRANTY, OTHER THAN THE EXPRESS WARRANTY MADE IN SECTION 6.2(I) ABOVE, AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE NOVAWATCH PORTAL. NOVAWATCH SHALL HAVE NO LIABILITY FOR ANY INACCESSIBILITY OF THE NOVAWATCH PORTAL, ANY VIRUS, TRAPS OR OTHER HARMFUL CODE DIRECTLY OR INDIRECTLY TRANSMITTED BY OR THROUGH THE NOVAWATCH PORTAL (EXCEPT WHERE THE SAME WAS INTENTIONALLY OR KNOWINGLY TRANSMITTED BY NOVAWATCH WITHOUT CLIENT’S CONSENT), OR ANY DELAY OR FAILURE OF ANY TRANSMISSION, COMMUNICATION OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED VIA THE NOVAWATCH PORTAL. CLIENT SHALL BEAR SOLE RESPONSIBILITY TO DETERMINE WHETHER CLIENT’S USE OF THE SOFTWARE MEETS THE REQUIREMENTS OF LAWS AND REGULATIONS APPLICABLE TO CLIENT.

6. Compliance with Laws.

Client shall at all times comply with all applicable laws and regulations in Client’s access to and use of the Novawatch Portal. Without limiting the generality of the foregoing, Client will not export or re-export the Novawatch Portal without all required United States and foreign government licenses. All rights to use the Novawatch Portal are granted on condition that such rights are forfeited if Client fails to comply with the terms of this Agreement. Client will defend, indemnify and hold harmless Novawatch and its directors, officers, employees and agents from and against any violation of such laws or regulations by Client or any of its Authorized Users. IN NO EVENT WILL CLIENT, ON THE ONE HAND, OR NOVAWATCH ON THE OTHER HAND, BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), FOR LOST PROFITS OR REVENUES, LOSS OF USE OR LOSS OF DATA, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR DELIVERABLES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Limitation of Liability.

NEITHER NOVAWATCH NOR ANY OF ITS LICENSORS (EACH A “NOVAWATCH LICENSOR”), SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA OR LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE NOVAWATCH PORTAL, OR ANY COMMUNICATION OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED VIA THE NOVAWATCH PORTAL, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, STATUTE, TORT OR NEGLIGENCE), EVEN IF NOVAWATCH OR ANY NOVAWATCH LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF CLIENT IS DISSATISFIED WITH THE NOVAWATCH PORTAL, CLIENT’S SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR CLIENT TO DISCONTINUE CLIENT’S USE OF THE SOFTWARE AND TERMINATE THIS AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL CUMULATIVE LIABILITY OF NOVAWATCH (INCLUDING THE NOVAWATCH LICENSORS) IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF ANY FEES ACTUALLY PAID BY CLIENT FOR USE OF THE NOVAWATCH PORTAL. CLIENT ACKNOWLEDGES THAT THE DISCLAIMERS AND LIMITATIONS HEREIN REFLECT A FAIR ALLOCATION OF RISK AND THAT NOVAWATCH WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS ON ITS LIABILITY, AND CLIENT AGREES THAT THE FOREGOING DISCLAIMERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF NOVAWATCH (INCLUDING THE NOVAWATCH LICENSORS) SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

8. U.S. Government Restricted Rights Notice.

The Novawatch Portal was developed at private expense and is a Commercial Item, as that term is defined in 48 CFR 2.101, consisting of Commercial Computer Novawatch Portal and Commercial Computer Novawatch Portal Documentation as such terms are used in 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4, as applicable. The Novawatch Portal may be licensed to U.S. Government end-users only as a Commercial Item and with only those rights granted to all other end-users pursuant to the terms and conditions herein.

9. Equitable Remedies.

The parties acknowledge and agree that a breach or threatened breach of this Section 1.2 (License Grant), 1.3 (License Restrictions), or 3 (Ownership; Protection) would result in irreparable harm to the non-breaching party or its suppliers for which a remedy at law would be inadequate, and therefore, such party shall have the right to seek to obtain injunctive relief upon any violation or threatened violation of any term of any of the foregoing Sections without the necessity of posting bond or other security, in addition to all other rights and remedies available at law or in equity.

10. Dispute Resolution.

THE CLIENT HEREBY WAIVES, WITH RESPECT TO ANY DISPUTE: (I) THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER; AND (II) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON. The foregoing waiver is referred to herein as the “class action waiver”. The parties agree to arbitrate any dispute arising out of or relating to the (i) the use of the Novawatch portal; and (ii) services rendered under this Agreement. The parties agree that such arbitration shall be conducted by the American Arbitration Association before a single arbitrator. Any arbitration hearing shall be held in Phoenix, Arizona, and the laws of Arizona shall apply notwithstanding any conflicts of laws principles. Novawatch and the Client agree that no arbitrator shall have authority to conduct any arbitration in violation of the class action waiver or to issue any relief that applies to any person or entity other than the Client and/or the Novawatch individually. The parties acknowledge that this class action waiver is material and essential to the arbitration of any claims and is non-severable from this Agreement. If the class action waiver is voided, found unenforceable, or limited with respect to any claim for which the Client seeks class-wide relief, then this Agreement (except for this sentence) shall be null and void with respect to such claim, subject to the right to appeal the limitation or invalidation of the class action waiver. However, this Agreement section shall remain valid with respect to all other claims and disputes. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.