Terms & Conditions
Terms of Service
The following terms of service apply to the following products:
- attachmentAV for Atlassian Confluence
- attachmentAV for Atlassian Jira Service Management (JSM)
- attachmentAV for Atlassian Jira
- attachmentAV for Salesforce
- attachmentAV for WordPress
- attachmentAV Virus and Malware Scan API (SaaS)
In contrast, attachmentAV Virus and Malware Scan API (Self-hosted on AWS) is sold under the Standard Contract for AWS Marketplace (SCMP).
Scope
Terms and Conditions
This agreement governs attachmentAV, licensed by widdix GmbH (“Licensor”) to you (“User”) for virus scanning services.
Software Subscription
A valid subscription requires an official receipt from Licensor.
Taxes
You are responsible for all applicable taxes and fees related to attachmentAV.
Agreement
Subscriptions to attachmentAV are subject to and governed by this Agreement, the terms and conditions of any NDA signed between you and the Licensor, the Privacy and Security Terms for attachmentAV listed on our privacy policy, and any amendments to any of the foregoing as may be agreed upon by the Parties, which together constitute the agreement between you, the Buyer and Licensor (the “Agreement”). Each Subscription is a separate agreement between you and the Subscription is a separate agreement between you and the Licensor. In the event of any conflict between the terms and conditions of the various components of this Agreement, the following order of precedence will apply: (a) any amendment agreed upon by the parties; (b) the Privacy and Security Terms for attachmentAV; (c) any NDA; and (d) this Agreement.
Licenses
Licensed Materials
You receive a nonexclusive, worldwide, non-transferable license to use attachmentAV.
For Salesforce users: Salesforce Partners Program terms (https://partners.salesforce.com) apply. For Atlassian users: Atlassian Partner Program terms (https://www.atlassian.com/partners) apply.
You may make reasonable copies of documentation for attachmentAV use.
Affiliates and Contractors
You are responsible for all obligations arising in connection with such Affiliate’s or Contractor’s use of attachmentAV. You agree to be directly liable for any act or omission by such Affiliate or Contractor to the same degree as if the act or omission were performed you.
Restrictions
Except as explicitly provided in this Agreement, you may not: (a) copy the Licensed Materials, in whole or in part; (b) distribute copies of Licensed Materials, in whole or in part, to any third party; (c) modify, adapt, translate, make alterations to or make derivative works based on Licensed Materials or any part thereof; (d) except as permitted by Law, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software; (e) use, rent, loan, sublicense, lease, distribute or attempt to grant other rights to any part of the Licensed Materials to third parties; (f) use the Licensed Materials to act as a consultant, service bureau or application service provider; or (g) permit access of any kind to the Licensed Materials to any third party.
High-Risk Activities
attachmentAV is not designed or developed for use in high-risk, hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the Software could lead to severe physical or environmental damages (“High Risk Activities”). You will not use the Software for High Risk Activities.
Proprietary Rights
Licensed Materials. Subject to the licenses granted herein, Licensor will retain all rights, title and interests in the Licensed Materials, including all Proprietary Rights therein. Nothing in this Agreement will be construed or interpreted as granting you any rights of ownership or any other proprietary rights in or to the Licensed Materials.
Feedback. If you provides any suggestions, ideas, enhancement requests, recommendations or feedback regarding the Licensed Materials or Support Services (“Feedback”), Licensor may use and incorporate Feedback in Licensor’s products and services. You will have no obligation to provide Feedback, and all Feedback is provided by you is “as is” and without warranty of any kind.
Warranties
Services. Licensor represents and warrants that the Services will be performed in a professional manner with a level of care, skill and diligence performed by experienced and knowledgeable professionals in the performance of similar services.
Remedies. If any Software or Service fails to conform to the foregoing warranties, the Licensor will promptly correct the Software and re-perform the Services as necessary to conform to the warranties.
Warranty Exclusions. Licensor will have no liability or obligation with respect to any warranty to the extent attributable to any: (a) use of the Software by you in violation of this Agreement or applicable Law; (b) unauthorized modifications to the Licensed Materials made by you; (c) use of the Software in combination with third-party equipment or software not provided or made accessible by Licensor or contemplated by this Agreement; or (d) your use of Software in conflict with the Documentation, to the extent that such nonconformity would not have occurred absent such use or modification by you.
Compliance with Laws. Each Party represents and warrants that it will comply with all applicable international, national, state and local laws, ordinances, rules, regulations and orders, as amended from time to time (“Laws”) applicable to such Party in its performance under this Agreement.
Power and Authority. Each Party represents and warrants that: (a) it has full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized; and (b) this Agreement and such Party’s performance hereunder will not breach any other agreement to which the Party is a party or is bound or violate any obligation owed by such Party to any third party. any third party.
Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE LICENSED MATERIALS, SERVICES, BUYER MATERIALS AND BUYER DATA, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. The Licensor does not warrant: (a) that the Licensed Materials will meet your NONINFRINGEMENT. The Licensor does not warrant: (a) that the Licensed Materials will meet your requirements; or (b) that the operation of the Software will be uninterrupted or error-free.
Confidentiality
Confidential Information. “Confidential Information” means any nonpublic information directly or indirectly disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or accessible to the Receiving Party pursuant to this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including without limitation technical data, trade secrets, know-how, research, inventions, processes, designs, drawings, strategic roadmaps, product plans, product designs and architecture, security information, marketing plans, pricing and cost information, marketing and promotional activities, business plans, customer and supplier information, employee and User information, business and marketing plans, and business processes, and other technical, financial or business information, and any third party information that the Disclosing Party is required to maintain as confidential. Confidential Information will not, however, include any information which: (a) was publicly known or made generally available to the public before the time of disclosure; (b) becomes publicly known or made generally available after disclosure through no fault of the Receiving Party; (c) is in the possession of the Receiving Party, without restriction as to use or disclosure, at the time of disclosure by the Disclosing Party; (d) was lawfully received, without restriction as to use or disclosure, from a third party (who does not have an obligation of confidentiality or restriction on use itself); or (e) is developed by the Receiving Party independently from this Agreement and without use of or reference to the Disclosing Party’s Confidential Information or Proprietary Rights. Except for rights expressly granted in this Agreement, each Party reserves all rights in and to its Confidential Information. The Parties agree that the Licensed Materials are Confidential Information of Licensor.
Obligations. The Parties will maintain as confidential and will avoid disclosure and unauthorized use of Confidential Information of the other Party using reasonable precautions. Each Party will protect such Confidential Information with the same degree of care that a prudent person would exercise to protect its own confidential information of a like nature, and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof or access thereto. Each Party will restrict Confidential Information to individuals who need to know such Confidential Information and who are bound to confidentiality obligations at least as protective as the restrictions described in this Section 6. Except as necessary for the proper use of the Software, the exercise of a Party’s rights under this Agreement, performance of a Party’s obligations under this Agreement or as otherwise permitted under this Agreement, neither Party will use Confidential Information of the other Party for any purpose except in fulfilling its obligations or exercising its rights under this Agreement. Each Party will promptly notify the other Party if it becomes aware of any unauthorized use or disclosure of the other Party’s Confidential Information, and reasonably cooperate with the other Party in attempts to limit disclosure.
Compelled Disclosure. If and to the extent required by law, including regulatory requirements, discovery request, subpoena, court order or governmental action, the Receiving Party may disclose or produce Confidential Information but will give reasonable prior notice (and where prior notice is not permitted by applicable Law, notice will be given as soon as the Receiving Party is legally permitted) to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure. other appropriate remedy regarding such disclosure. Disclosure of any Confidential Information pursuant to any legal requirement will not be deemed to render it non-confidential, and the Receiving Party’s obligations with respect to Confidential Information of the Disclosing Party will not be changed or lessened by virtue of any such disclosure.
NDA. Buyer and Licensor may agree that a separate nondisclosure agreement between Buyer and Licensor (or the respective Affiliates of Buyer and Licensor) (“NDA”) will apply to the Subscription, in which case the terms and conditions thereof are incorporated herein by reference and will apply instead of Confidentiality terms in this Agreement.
Additional SaaS Service Obligations and Responsibilities
Acceptable Use. You will not intentionally use the SaaS Software or SaaS Service to store, download or transmit infringing or illegal content, or any viruses, “Trojan horses” or other harmful code; engage in phishing, spamming, denial-of-service attacks or fraudulent or criminal activity; interfere with or disrupt the integrity or performance of the Software or data contained therein or on Licensor’s system or network; or perform penetration testing, vulnerability testing or other security testing on the Software or Licensor’s systems or networks or otherwise attempt to gain unauthorized access to the Software or Licensor’s systems or networks.
Security. Licensor will, consistent with industry-standard practices, implement and maintain physical, administrative and technical safeguards and other security measures: (a) to maintain the security and confidentiality of your; and (b) to protect your from known or reasonably anticipated threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure. Without limiting the foregoing, Licensor will provide the SaaS Services in compliance with the Security Addendum attached hereto.
Data Protection Legislation. Each Party will comply with all data protection Laws, and any implementations of such Laws, applicable to its performance under this Agreement. The Parties acknowledge and agree that they will consider in good faith implementing any codes of practice and best practice guidance issued by relevant authorities as they apply to applicable country specific data protection Laws or their implementations.
Without limiting the generality of the foregoing, if Licensor is collecting or furnishing Personal Information to Buyer or if Licensor is processing, storing or transferring Personal Information on behalf of Buyer, then Licensor and Buyer and/or their Affiliate(s), as applicable, will agree to supplemental privacy and security terms consistent with applicable Law, and if the Personal Information is regarding individuals in the European Economic Area, Licensor and Buyer agree to be bound by the attached Data Processing Addendum or other terms and conditions agreed upon by Buyer and Licensor that reflect their respective legal obligations with respect to Personal Information and any applicable data transfer mechanisms. For purposes of this Agreement, “Personal Information” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity or any data, data element or information that is subject to breach notification, data security obligations or other data protection Laws. For the avoidance of doubt, no Personal Information should be processed or transferred under this Agreement without Privacy and Security Terms necessary for compliance with applicable Law.
Remedies. Each Party agrees that in the event of a breach or threatened breach of this Section 7, the non-breaching Party will be entitled to injunctive relief against the breaching Party and any other remedies to which the non-breaching Party may be entitled. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party breaches any of the provisions set forth in this Section 7.
Limitations of Liability
Disclaimer; General Cap. SUBJECT TO SECTIONS THE PROVISIONS IN THIS AGREEMENT, IN NO EVENT WILL (a) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (b) EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, EXCEED THE GREATER OF (i) IN THE CASE OF A SUBSCRIPTION WITH ENTITLEMENT PRICING, THE FEES AND OTHER AMOUNTS PAID AND REQUIRED TO BE PAID BY BUYER FOR THE SUBSCRIPTION, AND, IN THE CASE OF A SUBSCRIPTION WITH METERED PRICING, THE FEES AND OTHER AMOUNTS PAID AND REQUIRED TO BE PAID UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES, OR (ii) $50,000.
Exception for Gross Negligence, Willful Misconduct or Fraud. THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT WILL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
Exception for Certain Indemnification Obligations. THE EXCLUSIONS OF AND LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT WILL NOT APPLY TO ANY COSTS OF DEFENSE AND ANY AMOUNTS AWARDED AGAINST THE INDEMNIFIED PARTY BY A COURT OF COMPETENT JURISDICTION OR AGREED UPON PURSUANT TO SETTLEMENT AGREEMENT THAT ARE SUBJECT TO SUCH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS AGREEMENT.
Indemnification
Licensor Indemnity. Licensor will, at its expense, indemnify, defend and hold harmless you and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Your Indemnified Parties”) from and against any and all claims, actions, proceedings and suits brought by a third party, and any and all liabilities, losses, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (“Claims”), to the extent arising out of or relating to an allegation of any of the following: (a) infringement, misappropriation or violation of any Proprietary Rights by the Licensed Materials or your use thereof as permitted under this Agreement; and (b) any unauthorized access, use or disclosure of your data resulting from breach of Licensor’s obligations under any Privacy and Security Terms.
Your Indemnity. You will, at its expense, indemnify, defend and hold harmless Licensor and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Licensor Indemnified Parties”) from and against any and all claims, actions, proceedings and suits brought by a third party, and any and all liabilities, losses, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent arising out of or relating to an allegation of any of the following: (a) infringement, misappropriation or violation of any Proprietary Rights by the your material, data, or Licensor’s use thereof as permitted under this Agreement; and (b) any unauthorized or unlawful receipt, processing, transmission or storage of your data by Licensor in the performance of its obligations as permitted under this Agreement resulting from breach of your obligations under Section 7.2.2.
Process. The party(ies) seeking indemnification pursuant to this agreement (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) will give the other Party (the “Indemnifying Party”) prompt notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Parties informed of the status of each Claim. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party will control the defense or settlement of the Claim, provided that the Indemnifying Party, without the Indemnified Parties’ prior written consent: (a) will not enter into any settlement that; (i) includes any admission of guilt or wrongdoing by any Indemnified Party; (ii) imposes any financial obligations on any Indemnified Party that Indemnified Party is not obligated to pay under this Section 9; (iii) imposes any non-monetary obligations on any Indemnified Party; and (iv) does not include a full and unconditional release of any Indemnified Parties; and (b) will not consent to the entry of judgment, except for a dismissal with prejudice of any Claim settled as described in (a). The Indemnifying Party will ensure that any settlement into which it enters for any Claim is made confidential, except where not permitted by applicable Law.
Limitations. Licensor will have no liability or obligation under this Section 9 concerning any infringement Claim to the extent attributable to any: (a) modifications to the Licensed Materials not provided by Licensor or its Personnel; (b) use of the Software in combination with third-party equipment or software not provided or made accessible by Licensor or not referenced explicitly for use with the Licensed Materials by the Standard Contract Listing or Documentation; or (c) use of the Licensed Materials by you in breach of this Agreement. Licensor’s liability under this Section 9 for any infringement Claim that is attributable to use of the Software in combination with third-party equipment or software provided or made accessible by Licensor or referenced explicitly by the Standard Contract Listing or Documentation is limited to Licensor’s proportional share of defense costs and indemnity liability based on the lesser of: (i) the value of the contribution of the Licensed Materials to the total value of the actual or allegedly infringing combination; or (ii) the relative contribution of the Licensed Materials to the actual or allegedly infringed claims (e.g., the Licensed Materials are alleged to satisfy one limitation of a claim with four separate limitations and Licensor would be responsible for a 25% share of the defense and indemnity obligations).
This Section states the entire liability of Licensor with respect to infringement, misappropriation or violation of Proprietary Rights of third parties by any Licensed Materials or any part thereof or by any use thereof by Buyer, and this Section 9 states the entire liability of Buyer with respect to infringement, misappropriation or violation of Proprietary Rights of third parties by any Buyer Materials, Buyer Data or any part thereof or by any use, receipt, storage or processing thereof by Licensor.
Not Limiting. The foregoing indemnities will not be limited in any manner whatsoever by any required or other insurance coverage maintained by a Party.
Term and Termination
Term. This Agreement will continue in full force and effect until the conclusion of the Subscription unless terminated earlier by either Party as provided by this Agreement.
Termination for Cause. Either Party may terminate the Subscription or this Agreement if the other Party materially breaches this Agreement and does not cure the breach within 30 days following its receipt of written notice of the breach from the non-breaching Party. In the case of a SaaS Subscription, termination by Licensor pursuant to this Section does not prejudice your right, and Licensor’s obligation, to extract or assist with the retrieval or deletion of your as set forth in this Agreement following such termination.
Effect of Termination. Upon termination or expiration of the Subscription or this Agreement, your right to use the Software licensed under such Subscription will terminate, and your access to the Software and Service provided under such Subscription may be disabled and discontinued. Termination or expiration of any Subscription purchased by Buyer from Licensor will not terminate or modify any other Subscription purchased by Buyer from Licensor.
Within 30 days following termination or expiration of any SaaS Subscription for any reason and on your written request at any time before termination or expiration, Licensor will return to you all your data in a secure manner and delete it.
Insurance
Licensor carries general liability insurance available to you at your written request.
General.
Applicable Law. This Agreement will be governed and interpreted under the laws of the Germany except for users of the United States. For users of the United States this agreement shall be governed under the State of Nevada, excluding its principles of conflict of laws. The Parties agree that the exclusive forum for any action or proceeding will be in Washoe County, Nevada, and the Parties consent to the jurisdiction of the state and federal courts located in Washoe County, Nevada. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Assignment. Neither Party may assign or transfer this Agreement or any rights or delegate any duties herein without the prior written consent of the other Party, which will not be reasonably withheld, delayed or conditioned. Notwithstanding the foregoing, and without gaining the other Party’s written consent, either Party may assign this Agreement, in whole or part, and delegate its obligations to its Affiliates or to any entity acquiring all or substantially all of its assets related to the Standard Contract Listing or the assigning Party’s entire business, whether by sale of assets, sale of stock, merger or otherwise. Any attempted assignment, transfer or delegation in contravention of this Section will be null and void. This Agreement will inure to the benefit of the Parties hereto and their permitted successors and assigns.
Divestiture. If Buyer divests a portion of its business to one or more organizations that are not Affiliates of Buyer, or if an entity ceases to be an Affiliate of Buyer (such divested business unit or such entity, a “Divested Affiliate”), Licensor agrees to allow such Divested Affiliate to continue to use the Software, and Buyer may elect that (a) such Divested Affiliate continue, as if it were a Buyer Affiliate, to use the Software under Buyer’s AWS Marketplace account if an AMI Subscription and under Buyer’s account with Licensor if a SaaS Subscription for the Divested Affiliate continue, as if it were a Buyer Affiliate, to use the Software under Buyer’s AWS Marketplace account if an AMI Subscription and under Buyer’s account with Licensor if a SaaS Subscription for the remainder of the Subscription, or (b) such Divested Affiliate may obtain its own Subscription to the Software for a period of 90 days after the effective date of such divestiture under the same terms and conditions as this Agreement and the same pricing as set forth in the Standard Contract Listing. Use by a Divested Affiliate after the conclusion of the Subscription or 90 day period, as applicable, will require a separately purchased subscription from Licensor through an AWS Marketplace account of that Divested Affiliate or its then-current Affiliates.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. This Agreement is solely between Buyer and Licensor. Neither Amazon Web Services, Inc. nor any of its Affiliates are a party to this Agreement and none of them will have any liability or obligations hereunder. The Affiliates are a party to this Agreement and none of them will have any liability or obligations hereunder. The terms and conditions of this Agreement will not be changed, amended, modified or waived unless such change, amendment, modification or waiver is in writing and signed by authorized representatives of the Parties. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED ORALLY OR IN ANY QUOTATION, PURCHASE ORDER, INVOICE, SHIPPING DOCUMENT, ONLINE TERMS AND CONDITIONS, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES.
Force Majeure. Neither Party will be liable hereunder for any failure or delay in the performance of its obligations in whole or in part, on account of riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes (not involving the Party claiming force majeure), embargo, civil or military authority, act of God, governmental action or other causes beyond its reasonable control and without the fault or negligence of such Party or its Personnel and such failure or delay could not have been prevented or circumvented by the non-performing Party through the use of alternate sourcing, workaround plans or other reasonable precautions, including, in the case of a SaaS Service, Licensor’s Business Continuity Plan, as required under this Agreement (a “Force Majeure Event”). A Force Majeure Event will not excuse or suspend Licensor’s obligation to invoke and follow its Business Continuity Plan in a timely fashion, and to the extent that such Business Continuity Plan was designed to cover the specific force majeure, or events caused by the Force Majeure Event, the foregoing will excuse Licensor’s performance under this Agreement only for the period of time from the occurrence of the Force Majeure Event until Licensor invokes its Business Continuity Plan. If a Force Majeure Event continues for more than 14 days for any Subscription with Entitlement Pricing, Buyer may cancel the unperformed portion of the Subscription and receive a pro rata refund of any fees prepaid by Buyer to Licensor for such unperformed portion.
Export Laws. Each Party will comply with all applicable customs and export control laws and regulations of the United States and/or such other country, in the case of Buyer, where Buyer or its Users use the Software or Services, and in the case of Licensor, where Licensor provides the Software or Services. Each Party certifies that it and its Personnel are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s list of Denied Persons. Neither Party will export, re-export, ship, or otherwise transfer the Licensed Materials, Services or Buyer Data to any country subject to an embargo or other sanction by the United States.
Government Rights. As defined in FARS §2.101, the Software and Documentation are “commercial items” and according to DFARS §252.227 and 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with FARS §12.212 and DFARS §227.7202, any use, modification, reproduction, release, performance, display or discourse of such commercial software or commercial software documentation by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
No Third-Party Beneficiaries. Except as specified in Section 9 with respect to Buyer Indemnified Parties and Licensor Indemnified Parties, nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations or liabilities whatsoever.
Notices. To be effective, notice under this Agreement must be given in writing. Each Party consents to receiving electronic communications and notifications from the other Party in connection with this Agreement. Each Party agrees that it may receive notices from the other Party regarding this Agreement: (a) by email to the email address designated by such Party as a notice address for the Standard Contract; (b) by personal delivery; (c) by registered or certified mail, return receipt requested; or (d) by nationally recognized courier service. Notice will be deemed given upon written verification of receipt.
Nonwaiver. Any failure or delay by either Party to exercise or partially exercise any right, power or privilege under this Agreement will not be deemed a waiver of any such right, power or privilege under this Agreement. No waiver by either Party of a breach of any term, provision or condition of this Agreement by the other Party will constitute a waiver of any succeeding breach of the same or any other provision hereof. No such waiver will be valid unless executed in writing by the Party making the waiver.
Publicity. Neither Party will issue any publicity materials or press releases that refer to the other Party or its Affiliates, or use any trade name, trademark, service mark or logo of the other Party or its Affiliates in any advertising, promotions or otherwise, without the other Party’s prior written consent.
Relationship of Parties. The relationship of the Parties will be that of independent contractors, and nothing contained in this Agreement will create or imply an agency relationship between Buyer and Licensor, nor will this Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Buyer and Licensor. Each Party assumes sole and full responsibility for its acts and the acts of its Personnel. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.
Severability. If any term or condition of this Agreement is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.
Subcontracting. Licensor may use Subcontractors in its performance under this Agreement. Licensor remains responsible for all its duties and obligations hereunder and the use of any Subcontractor will not relieve or reduce any liability of Licensor or cause any loss of warranty under this Agreement.
Security
Security Program. Licensor will, consistent with industry standard practices, implement and maintain a security program: (a) to maintain the security and confidentiality of Confidential Information; and (b) to protect Confidential Information from known or reasonably anticipated threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure. Licensor will safeguard your Confidential Information with at least the degree of care it uses to protect its own confidential information of a like nature and no less than a reasonable degree of care. Without limitation, Licensor’s policies will require, and the safeguards to be implemented by Licensor, will include at a minimum, but without limitation to, the following: appropriate administrative controls, such as communication of all applicable information security policies, information security and confidentiality training, and assignment of unique access credentials (which shall be revoked upon termination); controls to ensure the physical safety and security of all facilities (including third party locations) where Confidential Information may be processed or stored, including, at a minimum, locked doors and keys/key cards to access any facility and a business continuity plan that is regularly reviewed and updated; controls to limit access to Licensor’s systems and Confidential Information, including a password policy for all Personnel that access Confidential Information and a prohibition on the use of shared credentials for users and/or systems; and Confidential Information.
Processing of Personal Data
Instructions from the Controller. Notwithstanding anything in the Standard Contract to the contrary, Licensor will only process Personal Data in order to provide the Services to you, in accordance with your written instructions, or as required by applicable Law. Licensor will promptly inform your if following your instructions would result in a violation of applicable data protection law or where Licensor must disclose Personal Data in response to a legal obligation (unless the legal obligation prohibits Licensor from making such disclosure).
Confidentiality. Licensor will restrict access to Personal Data to those authorized persons who need such information to provide the Services. Such authorized persons are obligated to maintain the confidentiality of any Personal Data.
Sensitive Information. You will inform Licensor if you learn if Personal Data falls into any special categories of personal data as defined in Article 9(1) of Regulation (EU) 2016/679.
Security. Licensor will implement appropriate technical and organizational measures to ensure a level of security appropriate to the Personal Data provided by you and processed by Licensor. Such security measures will be at least as protective as the security requirements set forth in Section 8.5 of the Standard Contract.
Sub-processors. Buyer agrees that Licensor, a processor, may engage other processors (“Sub-processors”) to assist in providing the Services consistent with the Standard Contract. Licensor will make a list of such Sub-processors available to Buyer prior to transferring any Personal Data to such Sub-processors. Licensor will notify Buyer of any changes to the list of Sub-processors in order to give Buyer an opportunity to object to such changes.
Sub-processor Liability. Where Licensor engages another processor for carrying out specific processing activities on behalf of Buyer, the same data protection obligations as set out in this Addendum will be imposed on that other processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the EU data protection law. Where that other processor fails to fulfil its data protection obligations, Licensor shall remain fully liable to the Buyer for the performance of that other processor’s obligations.
Access Requests. Licensor has implemented and will maintain appropriate technical and organizational measures needed to enable Buyer to respond to requests from data subjects to access, correct, transmit, limit processing of, or delete any relevant Personal Data held by Licensor.
Recordkeeping. Upon a request issued by a supervisory authority for records regarding Personal Data, Licensor will cooperate to provide the supervisory authority with records related to processing activities performed on Buyer’s behalf, including information on the categories of Personal Data processed and the purposes of the processing, the use of service providers with respect to such processing, any data disclosures or transfers to third parties and a general description of technical and organizational measures to protect the security of such data.
Cooperation. Licensor will cooperate to the extent reasonably necessary in connection with Buyer’s requests related to data protection impact assessments and consultation with supervisory authorities and for the fulfillment of Buyer’s obligation to respond to requests for exercising a data subject’s rights in Chapter III of Regulation (EU) 2016/679. Licensor reserves the right to charge Buyer for its reasonable costs in collecting and preparing Personal Data for transfer and for any special arrangements for making the transfer.
Third Party Requests. If Licensor receives a request from a third party in connection with any government investigation or court proceeding that Licensor believes would require it to produce any Personal Data, Licensor will inform Buyer in writing of such request and cooperate with Buyer if Buyer wishes to limit, challenge or protect against such disclosure, to the extent permitted by applicable Law.
Transfer of Personal Data; Appointment. You authorize Licensor to transfer, store or process Personal Data in the United States or any other country in which Licensor or its Sub-processors maintain facilities. You appoints Licensor to perform any such transfer of Personal Data to any such country and to store and process Personal Data in order to provide the Services. Licensor will conduct all such activity in compliance with the Standard Contract, this Addendum, applicable Law and Buyer instructions.
Retention. Personal Data received from Buyer will be retained only for so long as may be reasonably required in connection with Licensor’s performance of the Standard Contract or as otherwise required under applicable Law.
Deletion or Return. When instructed by Buyer, Licensor will delete any Personal Data or return it to Buyer in a secure manner and delete all remaining copies of Personal Data after such return except where otherwise required under applicable Law. Licensor will relay Buyer’s instructions to all Sub-processors.
Breach Notification. After becoming aware of a Personal Data breach, Licensor will notify Buyer without undue delay of: (a) the nature of the data breach; (b) the number and categories of data subjects and data records affected; and (c) the name and contact details for the relevant contact person at Licensor.
Audits. Upon request, Licensor will make available to Buyer all information necessary, and allow for and contribute to audits, including inspections, conducted by Buyer or another auditor mandated by Buyer, to demonstrate compliance with Article 28 of Regulation (EU) 2016/679. For clarity, such audits or inspections are limited to Licensor’s processing of Personal Data only, not any other aspect of Licensor’s business or information systems. If Buyer requires Licensor to contribute to audits or inspections that are necessary to demonstrate compliance, Buyer will provide Licensor with written notice at least 60 days in advance of such audit or inspection. Such written notice will specify the things, people, places or documents to be made available. Such written notice, and anything produced in response to it (including any derivative work product such as notes of interviews), will be considered Confidential Information and, notwithstanding anything to the contrary in the Standard Contract, will remain Confidential Information in perpetuity or the longest time allowable by applicable Law after termination of the Standard Contract. Such materials and derivative work product produced in response to Buyer’s request will not be disclosed to anyone without the prior written permission of Licensor unless such disclosure is required by applicable Law. If disclosure is required by applicable Law, Buyer will give Licensor prompt written notice of that requirement and an opportunity to obtain a protective order to prohibit or restrict such disclosure except to the extent such notice is prohibited by applicable Law or order of a court or governmental agency. Buyer will make every effort to cooperate with Licensor to schedule audits or inspections at times that are convenient to Licensor. If, after reviewing Licensor’s response to Buyer’s audit or inspection request, Buyer requires additional audits or inspections, Buyer acknowledges and agrees that it will be solely responsible for all costs incurred in relation to such additional audits or inspections.
Definitions
“Affiliate” means, with respect to a Party, any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with such Party.
“Contractor” means any third party contractor of you or other third party performing Services
“Documentation” means the user guides, manuals, instructions, specifications, notes, documentation, printed updates, “read-me” files, release notes and other materials related to the Software (including all information included or incorporated by reference in the applicable Standard Contract Listing), its use, operation or maintenance, together with all enhancements, modifications, derivative works, and amendments to those documents, that Licensor publishes or provides under this Agreement.
“Licensed Materials” means the Software, Documentation and any other items, materials or deliverables that Licensor provides, or is obligated to provide, under this Agreement.
“Metered Pricing” means any pricing model for AMI Software or SaaS Software Subscriptions where Buyer pays as it goes based on the quantity of its usage of the Software.
“Personnel” means a Party or its Affiliate’s directors, officers, employees, non-employee workers, agents, auditors, consultants, contractors, subcontractors and any other person performing services on behalf of such Party (but excludes the other Party and any of the foregoing of the other Party).
“Privacy and Security Terms” means Section 7.5, the attached Security Addendum and any other terms and conditions regarding the privacy and security of data agreed upon by the parties that are a part of this Agreement, whether in an addendum or amendment to this Standard Contract.
“Proprietary Rights” means all intellectual property and proprietary rights throughout the world, whether now known or hereinafter discovered or invented, including, without limitation, all: (a) patents and patent applications; (b) copyrights and mask work rights; (c) trade secrets; (d) trademarks; (e) rights in data and databases; and (f) analogous rights throughout the world.
“SaaS” means a way that the Software offered by Licensor under a Standard Contract Listing may be provisioned to Buyer where the Software is delivered to Buyer on a software-as-a-service basis. The SaaS Licensor deploys the hosted Software under Licensor’s account on the AWS Services infrastructure and is responsible for granting Buyer access to and use of the Software and SaaS Service.
“SaaS Service” means the attachmentAv or related products sold by the Licensor
“Services” means all services and tasks that Licensor provides, or is obligated to provide, under this Agreement, including without limitation Support Services.
“Software” means the computer software identified in the applicable Standard Contract Listing and any other software, including any patches, bug fixes, corrections, remediation of security vulnerabilities, updates, upgrades, modifications, enhancements, derivative works, new releases and new versions of the Software that Licensor provides, or is obligated to provide, under this Agreement.
“Software Subscriptions” where you purchase a quantity of usage upfront, include prepaid and installment payment
“Subcontractor” means any third party subcontractor or other third party to whom Licensor delegates any of its duties and obligations under this Agreement.
“Subscription” means a subscription ordered by you in the AWS Marketplace and fulfilled by Licensor for the licensing and provision of AMI Software or SaaS Software listed in a Standard Contract Listing.
“Support Services” means the support and maintenance services for the Software that Licensor provides, or is obligated to provide, as described in the Standard Contract Listing.
“System Data” means data and data elements collected by the SaaS Software, SaaS Service or Licensor’s computer systems regarding configuration, environment, usage, performance, vulnerabilities and security of the SaaS Software or SaaS Service that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the SaaS Software.
“User” means an employee, non-employee worker, or other member of you or your team, or one of your Contractor or affiliate or other person or software program or computer systems authorized by you or any of your Affiliates to access and use the Software as permitted under this Agreement.
Conditions of Sale (FastSpring®)
The following products are sold by FastSpring® on behalf of attachmentAV.
- attachmentAV for WordPress
- attachmentAV Virus and Malware Scan API (SaaS)
As the Merchant and Seller of Record, FastSpring® purchases products and services from attachmentAV and re-sells the products or services to you.
FastSpring® Terms & Conditions of Sale: https://fastspring.com/legal/terms-sale/ FastSpring® Privacy Statement: https://fastspring.com/privacy/
Support Service Level Agreement (SLA)
We respond no later than this time next business day in Germany.