These General Terms and Conditions (“General Terms”) between Bento Holdings, Inc., a Maine corporation, with offices at 254 Commercial Street, Ste 245, Portland, Maine 04101 (“BENTO SECURITY”) and Customer are made as of the date Customer clicks the “Accept” button (“Effective Date”).
If you register for a free trial of our services or for free services, then the applicable provisions of this agreement shall also govern your free trial for those free services.
The purpose of the General Terms is to create a single mechanism under which Customer may purchase BENTO SECURITY Services. In addition to the General Terms, User’s purchase and use of BENTO SECURITY Service shall also be subject to the applicable BENTO SECURITY Order Form for each BENTO SECURITY Service purchased by Customer in the form as mutually agreed by Customer and BENTO SECURITY. In the event of any conflict between the General Terms, and Order Forms (as defined below), the order of precedence will be the following: these General Terms, and then the applicable Order Form(s); provided, however, in the event of any specific conflict between a Order Form and the General Terms, the General Terms shall control solely with respect to the subject matter.
BY CLICKING ON THE “ACCEPT” BUTTON, CUSTOMER AGREES THAT THIS AGREEMENT (AS DEFINED BELOW) IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY TERMS CONTAINED IN USER’S PURCHASE ORDER.
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party. “Control,” for purposes of this definition, means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
1.2 “Agreement” means the General Terms, each Customer Agreement, each SOW (if any) and any other document executed by the parties.
1.3 “Confidential Information” has the meaning set forth in Section 3.
1.4 “Customer” means the customer identified on the Order Form.
1.5 “Customer Materials” means any policies, controls, and workflows that are based on the templates provided by BENTO SECURITY but that are customized by Customer to include Customer-specific information. For the avoidance of doubt, Customer Materials do not include the templates in the form provided by BENTO SECURITY.
1.6 “Documentation” means the description of the BENTO SECURITY Service(s) contained in the then current BENTO SECURITY Service descriptions provided by BENTO SECURITY to Customer upon purchase or license of the BENTO SECURITY Service(s), and any Customer documentation or support knowledge database relating to the use of the BENTO SECURITY Services that are provided on-line at the time of User’s purchase of the BENTO SECURITY Service and delivered with the BENTO SECURITY Service.
1.7 “Free Trial” means the evaluation term for a BENTO SECURITY Service, usually for a two (2) or four (4) week period, as set by BENTO SECURITY through the duration of valid access to the BENTO SECURITY Service. Upon request by User, BENTO SECURITY may extend the evaluation term at its sole discretion and an authorized representative shall notify Customer of any such extension to its valid access to the BENTO SECURITY Service via email.
1.8 “Extension Term” means each additional one year subscription term for which the subscription term for a BENTO SECURITY Service is extended pursuant to Section 7.
1.9 “Initial Term” means the initial subscription term for a BENTO SECURITY Service that is defined on the applicable Order Form.
1.10 “Order Form” or “Invoice” means an ordering document for a BENTO SECURITY Service and may take the form of an invoice issued by BENTO SECURITY or a purchase order issued by Customer or Reseller. Each Order Form shall reference this Agreement and these General Terms.
1.11 “Reseller” means a third-party authorized by BENTO SECURITY to resell BENTO SECURITY Services directly to User.
1.12 “Subscription Fees” mean the fees paid by Customer for the right to use the applicable subscription based BENTO SECURITY Service for the given Initial Term or Extension Term, as applicable.
1.13 “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
1.14 “Term” means the Initial Term and any Extension Term applicable to each Invoice or Order Form.
1.15 “BENTO SECURITY Service” means the subscription to a Software as a Service that is licensed by or purchased by a User, as delivered by Bento Holdings, Inc. over the Internet under an Order Form.
1.16 “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized to use the BENTO SECURITY Service, or in the case of any Services provided without charge as a free trial, for whom a BENTO SECURITY Service has been provisioned; or for whom a subscription has been purchased. Examples of a Customer may include: an employee, consultant, contractor or any third party for which business is transacted that is authorized by Customer to use the Service.
2.1 Subject to the terms of these General Terms and any applicable agreements, Bento Holdings, Inc. grants to Customer and its Affiliates a royalty-free, non-exclusive, limited term, non-transferable (except to a successor in interest as permitted hereunder) license to use the BENTO SECURITY Services purchased by Customer during the Term in accordance with the Documentation, in the quantities specified in the applicable Order Form, and solely for User’s own internal business purposes. Customer may use the Documentation in connection with the license granted hereunder.
2.2 As between Customer and BENTO SECURITY Inc., Customer shall be responsible for all activities undertaken by User’s employees or agents in connection with their use of the Services, as well as for any failure on the part of its employees or agents to comply with any relevant law or regulation. Customer hereby agrees to indemnify and hold BENTO SECURITY Inc., its officers, directors, employees and agents harmless from and against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) in connection with any claim or action that arises from the actions of User’s employees or agents in connection with their use of the Service . Customer specifically agrees to limit the use of the BENTO SECURITY Services to those parameters set forth in the applicable Order Form. Without limiting the foregoing, Customers specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make a BENTO SECURITY Service (including the Documentation) available to any third party; (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, a BENTO SECURITY Service or the data contained therein; (iii) modify, copy or create derivative works based on a BENTO SECURITY Service; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from a BENTO SECURITY Service, in whole or in part; (v) access a BENTO SECURITY Service for the purpose of building a competitive Service or service or copying its features or Customer interface; (vi) use a BENTO SECURITY Service, or permit it to be used, for purposes of: (a) Service evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without BENTO SECURITY’s prior written consent; (b) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (c) violation of 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); (d) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; and/or (e) filing copyright or patent applications that include the Software and/or Documentation or any portion thereof.
2.3 Free Trial. If a Customer registers on the BENTO SECURITY website for a free trial, We will make one or more Services available to the Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by the Customer for such Service(s), or (c) termination by BENTO SECURITY in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA ENTERED BY A CUSTOMER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY A USER, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS THE CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR PURCHASES APPLICABLE UPGRADED SERVICES BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTIONS 9 (WARRANTIES, REMEDIES AND DISCLAIMERS) AND 10 (LIMITATION OF LIABILITY), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND Bento Holdings, Inc. SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, BENTO SECURITY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER OR USER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BENTO SECURITY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as “confidential” or the like, or, that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in and Order Form), the Software, Customer Data, Customer Materials, business and marketing plans, technology and technical information, Service designs, and business processes.
3.2 “Confidential Information” shall not include information that (i) is or becomes a matter of public knowledge through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure without restriction on disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party that lawfully and rightfully possesses such information without restriction on disclosure; (iv) information that the Receiving Party can document resulted from its own research and development, independent of receipt of the disclosure from the Disclosing Party; or (v) is disclosed with the prior written approval of the Disclosing Party.
3.3 Receiving Party shall not (i) disclose any Confidential Information of the Disclosing Party to any third party, except as otherwise expressly permitted herein or (ii) use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement or in any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States, except with Disclosing Party’s prior written consent. The Receiving Party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take all precautions to protect such Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like nature, but in no case shall the Receiving Party employ less than reasonable precautions. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the responding party shall give prompt written notice to the other party to enable the other party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.
The Receiving Party will return all copies of the Disclosing Party’s Confidential Information upon the earlier of (i) the Disclosing Party’s request, or (ii) the termination or expiration of this Agreement. Instead of returning such Confidential Information, the Receiving Party may destroy all copies of such Confidential Information in its possession; provided, however, the Receiving Party may retain copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the Receiving Party.
3.4 The parties acknowledge and agree that the confidentiality obligations set forth in this Agreement are reasonable and necessary for the protection of the parties’ business interests, that irreparable injury may result if they are breached, and that in the event of any actual or potential breach of Section 3, that the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.
4.1 As between the parties, BENTO SECURITY retains all title, intellectual property and other ownership rights throughout the world in and to the BENTO SECURITY Services, Documentation, any Service offering. BENTO SECURITY hereby grants to Customer a non- exclusive, non- transferable, fully paid up, license to use the Service in accordance with this Agreement and solely for User’s internal business purposes. Customer retains all title, intellectual property and other ownership rights in all Customer Data, Customer Materials, and all data, text, files, output, programs, information, or other information and material that Customer provides, develops, or makes available or uses in conjunction with any Service offering.
4.2 Customer’s rights to use the BENTO SECURITY Service (including any supporting documentation) shall be limited to those expressly granted in this Agreement and any applicable Customer Order Forms or Invoice. Customer is not authorized to use (and shall not permit any third party to use) the BENTO SECURITY Services (including the Documentation) or any portion thereof except as expressly authorized by this Agreement or the applicable Order Form. There are no implied rights and all other rights not expressly granted herein are reserved. No license, right or interest in any BENTO SECURITY trademark, copyright, trade name or service mark is granted hereunder. Customer shall not remove from any full or partial copies made by Customer of the Service or Service Interface, any copyright or other proprietary notice contained in or on the original, as delivered to Customer within the BENTO SECURITY Service.
4.3 Each party acknowledges that the BENTO SECURITY Service contains valuable trade secrets and proprietary information of BENTO SECURITY, that in the event of any actual or threatened breach of the scope of any of the licenses granted hereunder, such breach shall constitute immediate, irreparable harm to BENTO SECURITY for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies BENTO SECURITY might have at law or under this Agreement.
5. FEES, PAYMENT AND REPORTING
5.1 Initial Fees. Fees for the BENTO SECURITY Service will be the Subscription Fees and other fees set forth in the Order Forms (collective, the “Fees”). No refunds will be made except as provided for under any warranties for the applicable BENTO SECURITY Service as otherwise set forth herein or in the applicable Order Form. Customer will be liable for payment of all Taxes that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. BENTO SECURITY may be required to collect and remit Taxes from Customer, unless Customer provides BENTO SECURITY with a valid tax exemption certificate. The amounts received by BENTO SECURITY, after the provision for any Tax or withholding required by any country, will be equal to the amounts specified on the Order Form. In no event will either party be responsible for any taxes levied against the other party’s net income.
5.2 Renewal Fees. Upon expiration of the Initial Term applicable to an Order Form, the subscription term will renew for an Extension Term in accordance with Section 7.4. The Fees stated in each Order Form shall be effective during the Initial Term specified in that Order Form and the Subscription Fees and other fees for each Extension Term shall be defined in the applicable Order Form, or in the absence of any such terms regarding Fees for Extension Terms, by mutual agreement of the parties.
5.3 Payment. Unless otherwise agreed between User or Reseller, all Fees due under an Order Form shall be due and payable to BENTO SECURITY Inc. within thirty (30) days of receipt of invoice. Except as otherwise expressly permitted herein, all Fees owed pursuant to an Order Form are non-cancellable and non-refundable for the Term.
5.4 Automatic Payment. If User chooses to be billed in less than annual increments, User will be enrolled in automatic payments using the payment information provided upon first payment. User shall provide valid credit card or bank information authorized for automatic bill payment and shall take all necessary steps to authorize payment of the Fees. BENTO SECURITY uses a third party payment provider and does not store payment information, except perhaps the last four digits of User’s credit card or bank account number for informational/display purposes only. User authorizes BENTO SECURITY and the third party payment provider to charge this payment method for all subsequent payments within the subscription period.
5.5 Late Charges. Any payment not received from User by the due date may accrue (except for amounts then under reasonable and good faith dispute) interest at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. BENTO SECURITY may decline to make any shipments of BENTO SECURITY Services or provide Services, if in BENTO SECURITY’s reasonable opinion, circumstances exist which raise doubt as to User’s ability or willingness to pay as provided herein. Failure to make timely payment or available at law or in equity.
5.6 Reporting. Customer shall audit its actual usage of the subscription based BENTO SECURITY Services and only use the Services in accordance with the allowed Customer or usage limits as set out in the Order Form. Any discrepancies must be reported to BENTO SECURITY immediately upon discovery of the same.
6. SUPPORT AND PROFESSIONAL SERVICES
6.1 BENTO SECURITY shall provide support provided Customer is current in payment of the applicable Fees and any additional fees for premium support, if applicable. BENTO SECURITY’s current support terms are described on BENTO SECURITY’s website or applicable Order Form.
6.2 BENTO SECURITY, or one of its Partners, may provide Professional Services, if any, specified in one or more SOWs to be mutually agreed upon by the parties. Customer is not responsible for the payment of any Professional Services fees unless a corresponding SOW is executed by and between the parties. All Professional Services shall be billed as stated in the applicable SOW and Customer agrees that if Customer has not used the Professional Services within one (1) year of paying for such Professional Services, BENTO SECURITY has no further obligations and Customer shall not be entitled to a refund except as set forth expressly in the applicable SOW. BENTO SECURITY warrants it will provide Professional Services in a professional and workmanlike manner consistent with industry standards and practices and that all deliverables shall conform to the specifications set forth in the applicable SOW in all material respects. As Customer’s sole and exclusive remedy and BENTO SECURITY’s entire liability for any breach of the foregoing warranty, BENTO SECURITY will, (i) use reasonable efforts to provide a work around, or otherwise re-perform the Professional Services or, if BENTO SECURITY is unable to do so, (ii) terminate the applicable SOW and refund that portion of any Fees paid to BENTO SECURITY or Reseller that correspond to the allegedly defective Professional Services and deliverables.
7. TERMINATION AND EXPIRATION
7.1 Either party may terminate the General Terms or any Order Form (i) immediately upon written notice if the other party commits a non-remediable material breach; or (ii) if the other party fails to cure any remediable material breach within thirty (30) days of being of notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
7.2 Either party may terminate the General Terms and each Order Form immediately by written notice if (i) the only Term in effect is an Evaluation Term, or (ii) no Order Form is in effect.
7.3 On termination or expiration of the General Terms, all Software and Service licenses granted under all Order Forms shall automatically terminate with immediate effect, provided the license granted pursuant to Section 4.1 for Customer to use the BENTO SECURITY Service for User’s internal business purposes shall remain in full force and effect. For a period of 60 days past any termination, Customer may request, and BENTO SECURITY shall provide at no additional fee, a copy of all Customer Data.
7.4 Unless otherwise set forth in the applicable Order Form or Invoice, the Initial Term applicable to each Order Form commences on the date Customer executes such Order Form and the Initial Term applicable to follow-on orders under such Order Form commences on the date BENTO SECURITY receives such order. Upon expiration of the Initial Term under each Order Form the subscription term applicable to such Order Form shall automatically renew for Extension Terms unless otherwise agreed by the parties or either party gives the other notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription term.
7.5 In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including but not limited to sections 2.2, “License Restrictions”; 3, “Confidentiality”; 4, “Ownership”; 5 “Fees, Payment and Reporting”; 7, “Termination and Expiration”; 10, “Limitation of Liability”; and 11, “General Provisions”, as well as any accrued rights to payment shall remain in effect beyond such termination or expiration until fulfilled.
8. INTELLECTUAL PROPERTY INDEMNITY
BENTO SECURITY will (i) defend and indemnify Customer from and against any third party claim filed against the Customer alleging that the BENTO SECURITY Service, as sold and delivered to the Customer pursuant to this Agreement (the “Indemnified Service(s)”) infringes or misappropriates the intellectual property rights of such third party; and (ii) pay any damages finally awarded in such suit or proceeding as a result of such claim (or pay any settlement of such claim), provided that Customer will promptly notify BENTO SECURITY in writing of the third party claim, suit or proceeding within thirty (30) days after the Customer becomes aware of such claim, suit or proceeding (provided, however, the failure to provide such notice will only relieve BENTO SECURITY of its indemnity obligations hereunder to the extent BENTO SECURITY is prejudiced thereby); authorizes and allows BENTO SECURITY to have sole and exclusive control of the defense and/or settlement of the claim; and provides any information, assistance and other cooperation reasonably requested by BENTO SECURITY in connection with the claim, suit or proceeding. In the event of a claim relating to an Indemnified Service, BENTO SECURITY will, at its sole option and expense: (a) procure for Customer the right to use the Indemnified Services under the terms of this Agreement; (b) replace or modify the Indemnified Services to avoid the alleged infringement; or (c) if the foregoing options are not reasonably practicable, then BENTO SECURITY may terminate User’s rights to use Indemnified Services and refund all amounts paid by Customer to BENTO SECURITY attributable to Users’ future usage or access to the Indemnified Services hereunder. BENTO SECURITY shall have no liability for, and the aforementioned BENTO SECURITY obligations shall not apply to any claim based on or relating to (1) the use of the Indemnified Services in combination with any other Service, service or device, if such infringement claim would have been avoided by the use of the Indemnified Services without such other Service, service or device; (2) any modification or adaptation to the Indemnified Services by the Customer; (3) use of an Indemnified Services other than as expressly authorized pursuant to this Agreement or pursuant to applicable BENTO SECURITY Documentation; (4) use of the Indemnified Services by Customer after BENTO SECURITY has made available to Customer a modified version or replacement for the Indemnified Services or has provided notice to Customer that a claim of infringement has been or may be made with respect to the Indemnified Service; or (5) specifications, instructions, features, functions or designs or other elements provided by or requested by User. The foregoing is the sole and exclusive remedy of Customer and the entire liability of BENTO SECURITY with respect to any infringement or claim of infringement of any third party intellectual property right.
9. WARRANTIES, REMEDIES AND DISCLAIMERS
9.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder. BENTO SECURITY warrants that the BENTO SECURITY Services shall substantially conform in all material aspects to the Documentation throughout the Term. Customer will provide prompt written notice of any non-conformity. BENTO SECURITY may modify the Documentation in its sole discretion, provided that the BENTO SECURITY Services will not be materially decreased over the Term. As the Customer’s sole and exclusive remedy and BENTO SECURITY’s entire liability for any breach of the foregoing warranty, BENTO SECURITY will (i) provide a fix, work around or remedy the non-conformity within 30 calendar days, or if BENTO SECURITY is unable to do so (ii) immediately refund to Customer all fees paid for the BENTO SECURITY Services on a pro rata basis for the remainder of the Initial Term or Extension Term, as applicable.
9.2 BENTO SECURITY warrants that the Support Services will be performed in a professional and workmanlike manner and will be of a grade, nature, and quality that meets prevailing standards in the software-as-a-service industry.
9.3 BENTO SECURITY warrants that to its knowledge as of the Effective Date, Customer’s use of the Services in accordance with this Agreement will not infringe, misappropriate or otherwise violate any third party intellectual property or other proprietary rights
9.4 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE AND IN EACH ORDER FORM, BENTO SECURITY AND BENTO SECURITY LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT, INCLUDING WITHOUT LIMITATION ANY CONTENT, GUIDANCE OR RECOMMENDATIONS PROVIDED TO USERS WITHIN THE BENTO SECURITY SERVICES AND NONINFRINGEMENT. BENTO SECURITY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE, GUIDANCE, RECOMMENDATIONS, REPORTS OR THE INFORMATION GENERATED BY THE SERVICE IS ACCURATE OR SUFFICIENT FOR USER’S PURPOSES.BENTO SECURITY DOES NOT WARRANT THE OPERATION OF THE BENTO SECURITY SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO USER.
10. LIMITATION OF LIABILITY
10.1 EXCEPT FOR (i) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (iii) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY); (iv) USER’S BREACH OF SECTIONS 2 OR 4.1 (LICENSE TERMS), OR (V)USER’S PAYMENT OBLIGATIONS, EACH PARTY’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED (i) WITH RESPECT TO AN INITIAL OR RENEWAL TERM, THE APPLICABLE BENTO SECURITY SERVICE SUBSCRIPTION FEES (AS DEFINED), OR (ii) WITH RESPECT TO AN EVALUATION TERM, $25,000.
10.2 EXCEPT FOR (i) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY) OR (ii) CUSTOMER’S BREACH OF SECTIONS 2 OR 4.1 (LICENSE TERMS), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL 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.
11.1 Government Notice to Customer. This Section shall apply only if Customer is a federal government entity. BENTO SECURITY provides the BENTO SECURITY Services, including related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
11.2 Publicity. Customer agrees that upon request by BENTO SECURITY, Customer will: (i) make a representative reasonably available to participate in reference inquiries from BENTO SECURITY’s potential customers; and (ii) allow BENTO SECURITY to publicly identify it by name and logo as a customer of BENTO SECURITY.
11.3 Independent Contractors; Relationship with Third Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.4 Notices. All notices shall be in writing to each party’s address on the signature page of this Agreement and effective upon receipt.
11.5 Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, any Order Form issued by Customer or Reseller shall be deemed a convenient order and payment device only and no terms stated in any Order Form or in any other order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect.
11.6 Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. The parties’ rights and remedies under this Agreement are cumulative.
11.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms or Invoices hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. If the successor entity is a competitor of the other party, the other party may immediately terminate this Agreement, and Customer shall receive a refund of any unused prepaid fees upon such termination
11.9 Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the BENTO SECURITY Services and BENTO SECURITY Confidential Information and any media, to assure that the BENTO SECURITY Services, BENTO SECURITY Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
11.10 Restricted Use. Customers and Resellers are prohibited from acquiring or administering the BENTO SECURITY Service when headquartered in any of the following countries: Iraq, China, Russia, or any state listed on the United States State Department State Sponsors of Terrorism List found here https://www.state.gov/state-sponsors-of-terrorism/ Users of the BENTO SECURITY Service who are nationals or domiciled in these countries are exempt from this restriction.
11.11 Applicable Law. This Agreement will be governed by the laws of the State of Maine and the United States of America, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Cumberland, County, Maine, for resolution of any disputes arising out of this Agreement.
11.12 Counterparts. Any subsequent Order Form incorporated into this Agreement may be executed by facsimile and in counterparts.
11.13 Headings; Language. All headings used herein are for convenience of reference only and will not in any way affect the interpretation hereof. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.
11.14 Business Continuity. BENTO SECURITY shall at all times conform to its internal Business Continuity and Disaster Recovery plan as adopted by the company.