PacketWatch Terms of Purchase Services and or 3rd Party Products

Last updated: August 30, 2024

Terms and Conditions

These Terms of Purchase (“Terms”) govern the Order(s) for Service and/or Third-Party Product between WGM Associates LLC DBA PacketWatch or one of its Affiliates (the applicable entity identified in the Order as providing the Service or Third-Party Product is defined as “PacketWatch”) and the client described in the Order (“Client”). PacketWatch and Client may hereinafter be referred to individually as a “Party” and collectively as the “Parties”.

1.     DEFINITIONS.
   
   1. “Active User” or “User” means a Client user established to access the PacketWatch Resources and/or Sublicenses with a designation of “active” at any time during a subscription period. Client has the ability to determine who is an Active User.
   2. “Affiliate” or “Affiliates” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a Party hereto, and/or such Party’s successors and assigns.
   3. “Client Content” means materials or documents created and/or supplied by Client which is considered Client’s intellectual property.
   4. “Client Data” means proprietary or personal data regarding Client, its contractors or its employees made available to PacketWatch hereunder.
   5. “Confidential Information” means all information proprietary to a Party or its Affiliates and any of its customers or suppliers that is marked as confidential or that due to its nature is known or in good faith should be known to be confidential. Confidential Information of Client will be deemed to include, without limitation, all confidential Client Data to which PacketWatch obtains access by performing Services. Confidential Information of PacketWatch will be deemed to include, without limitation, all PacketWatch Intellectual Property, financial and data security information, and non-public features and functions of Sublicenses. The obligations of the Receiving Party shall not apply to Confidential Information: (i) generally available to the public at any time at no fault of the Receiving Party, (ii) furnished at any time to the Receiving Party by a third party having the right to furnish it with no obligation of confidentiality to the Disclosing Party, (iii) independently developed by the Receiving Party by individuals not having access to the Confidential Information of the Disclosing Party, (iv) approved for use or disclosure by written authorization from the Disclosing Party, or (v) required to be disclosed pursuant to a valid order by a court or other governmental entity with jurisdiction, provided that the Receiving Party provides the Disclosing Party with prompt written notice of such order to permit the Disclosing Party to challenge such disclosure.
   6. “Deliverable(s)” means the deliverables, if any, specified in an Order.
   7. “Disclosing Party” means a Party to these Terms who discloses its Confidential Information to a Receiving Party.
   8. “Export Control Law(s)” means all applicable export laws and regulations, including, without limitation, the Arms Export Control Act (22 U.S.C. § 2751-2794), the International Traffic in Arms Regulations (ITAR) (22 U.S.C. § 120 et seq), and the Export Administration Regulations (15 C.F.R. § 730-774), including the requirement for obtaining any export license or agreement, if applicable.
   9. “Intellectual Property Rights” means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
   10. “PacketWatch Intellectual Property” means any know-how, processes, techniques, concepts, methodologies, tools, ideas, designs, inventions, patents, copyrights, improvements, computer programs, software, PacketWatch Resources, source code, object code, graphics, intellectual property, information, and/or pictorial representations that (i) PacketWatch developed prior to entering into the applicable Order with Client; (ii) is or are developed separate and apart from the Order and Services at any time by PacketWatch; or (iii) led to or produced the results of the Services or were otherwise used by PacketWatch to provide the Services.
   11. “Order” means the statement of work, service order, purchase order, signed quote, or other order for Services or Third-Party Products executed by the Parties.
   12. “PacketWatch Resource(s)” means all hardware, appliances, equipment, software, support, maintenance, and other products which are manufactured, owned or produced by PacketWatch and licensed by PacketWatch to Client in accordance with the terms hereof.
   13. “Receiving Party” means a Party to these Terms who receives Confidential Information from a Disclosing Party.
   14. “Service(s)” means any service to be provided by PacketWatch detailed in an Order. Services may incorporate PacketWatch Resources and/or Sublicenses.
   15. “Sublicense(s)” means hardware, appliances, equipment, software, support, maintenance, services and/or other products which are manufactured or provided by Vendors and sublicensed by PacketWatch to Client in connection with the provision of Services hereunder and subject to the terms hereof.
   16. “Third-Party Product(s)” means all hardware, appliances, equipment, software, support, maintenance, services, and other products which are (i) manufactured, licensed, or provided by Vendors, and (ii) resold by PacketWatch to Client.
   17. “Vendor(s)” means third party manufacturers, vendors, suppliers, licensors, or providers of hardware, appliances, equipment, software, support, maintenance, services, and other products that are either sublicensed or resold by PacketWatch to Client.
2.  ORDER. PacketWatch shall provide the Services and/or Third-Party Products to Client as set forth in the relevant Order. Client must be the end user. No resale by Client is allowed hereunder. Each Order shall describe the specific Services to be purchased, if any, including any PacketWatch Resources and/or Sublicenses; service descriptions and/or service level agreements, as applicable; Third-Party Products, if any; license agreement(s), as applicable; fees and expenses; and such other specifications as the Parties may mutually agree. Each Order, when fully executed, shall be deemed to incorporate all the Terms herein (unless any provisions of these Terms are excluded or modified in the Order).
3. SERVICE DESCRIPTION AND SERVICE LEVEL MANAGEMENT DESCRIPTION. Copies of relevant Service documentation, including any applicable service description(s), service level management descriptions, and service level agreements will be referenced in the Order and made available to Client for review during the sales process. These documents are subject to change and are updated by PacketWatch when necessary, as processes and technology change.
4. CHANGE IN SCOPE OF SERVICES. In the event that unforeseen factors change the scope of Services and/or impact the term and cost of the Services, Client and PacketWatch may mutually revise the Order, and PacketWatch shall provide Client with an estimate of the impact of such revisions on the fees, payment terms, completion schedule, and other applicable provisions of the Order. If the Parties mutually agree to such changes, a written description of the agreed change (“Change Order”) shall be prepared, incorporating such changes to the original Order; the Change Order will not be effective unless signed by both Parties. The terms of a Change Order prevail over those of the Order.
5. FEES AND INVOICING.
   1. Fees. Fees for the Services and/or Third-Party Products, as applicable, shall be specified in each relevant Order. Client agrees to pay PacketWatch the fees set forth in each Order. Unless otherwise specified in the Order, Client agrees to reimburse PacketWatch for actual, reasonable travel and living expenses incurred by PacketWatch in connection with the performance of Services. Expenses are subject to the PacketWatch Travel Policy, available upon request.
   2. Taxes. All amounts payable by Client to PacketWatch hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Client shall be solely responsible for payment of any Taxes, except for those taxes based on the income of PacketWatch. Client will not withhold any Taxes from any amounts due to PacketWatch. In any case where a state imposes a tax on Client that PacketWatch is required to bill for, Client will be liable to pay that tax as part of the scheduled payments to PacketWatch.
   3. Invoices. PacketWatch shall invoice Client for Services in accordance with the applicable Order. PacketWatch shall invoice Client for Third-Party Products when such Third-Party Products are shipped or are otherwise made available to Client for access or download. Unless otherwise set forth in the Order, PacketWatch’s invoices are due and payable by Client in full within thirty (30) days from the invoice date. Undisputed invoices not paid within thirty (30) days from the invoice date will bear interest from the due date until paid at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Client shall also be responsible for all collection costs incurred by PacketWatch in connection with past due undisputed invoices.
6. TERM AND TERMINATION.
   1. Service Term and Renewals. PacketWatch shall perform Services during the initial term set forth in the Order (“Initial Term”). Unless otherwise expressly stated in the Order, and until either Party gives the other Party written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term, Orders for Service will automatically renew for additional equivalent periods of time (“Renewal Term(s)”) at PacketWatch’s then-applicable Service fees.
   2. Termination for Cause. Either Party shall have the right to terminate an Order for Services for cause if (a) the non-breaching Party notifies the other within thirty (30) days of the other’s breach, and (b) the breaching Party fails to cure any material breach of the Service Order within thirty (30) days after its receipt of written notice of such breach. PacketWatch may cure a material breach of Services, at PacketWatch’s sole option, by either (i) re-performing any defective or non-conforming Services, or (ii) refunding any amount paid by Client to PacketWatch for the Services that are deemed to be defective or non-conforming. If Client terminates the Order for cause for PacketWatch’s failure to cure, PacketWatch shall refund to Client the pro-rated portion of any prepaid Services fees, rounded down to the next whole month, corresponding to Services not yet performed. Termination of the Order does not release either Party from any liability which, at the time of termination, has already accrued to the Party. Activation, onboarding, implementation, configuration, sublicensing and other one-time fees and expenses, if any, associated with the establishment of Services will be set forth in the Order and are non-refundable.
   3. Early Cancellation of Services. If Client cancels an Order for Service, or any portion thereof, prior to the end of the current term (for any reason other than for an uncured material breach by PacketWatch), Client agrees to pay PacketWatch an early cancellation fee equal to the amount of remaining fees that would have been due and payable had the Service Order been performed for the entire term.
   4. Cancellation of Product Orders and Return of Products. Orders for Third-Party Products are non-cancellable and are binding and irrevocable once issued by Client and accepted by PacketWatch. Third-Party Product returns may be permitted in limited circumstances where allowed by the Vendor’s returns and refunds policy and such return must be approved in writing by the Vendor.
   5. Device Return. Upon cancellation, termination or expiration of an Order for Services, Client will return all PacketWatch-provided equipment and devices (“Devices”) in good condition (less normal wear and tear) to a location designated by PacketWatch within ten (10) business days after the cancellation, termination or expiration date. If PacketWatch has not received such PacketWatch-provided Devices within thirty (30) days after cancellation, termination or expiration of the Order, PacketWatch shall invoice Client, and Client shall promptly pay, for the manufacturer’s suggested retail price of such property. For purposes of clarification, “device(s)” do not include any Third-Party Product resold by PacketWatch and licensed directly to Client by a Vendor. Client shall maintain insurance and risk of loss on any PacketWatch hardware in its possession.
7. CLIENT POLICIES. While on Client’s premises, or if PacketWatch or PacketWatch’s agents are given access to Client’s computing equipment, applications, or network, PacketWatch shall and shall cause PacketWatch’s agents to abide by the applicable and reasonable policies and procedures of Client, including safety, security, and data privacy and handling policies, referenced in the applicable Order. However, PacketWatch will not provide PacketWatch or PacketWatch’s agents' employee CPNI/PII data, including but not limited to SSN, last 4 digits of SSN, date of birth, etc. to Client. If applicable and reasonable given the scope of the engagement, PacketWatch may provide employee names (first and last) and e-mail addresses, solely for the purposes of managing devices on Client's network.
8. THIRD PARTY PROVIDERS. The Services and Third-Party Products provided hereunder may contain features capable of interoperating with third-party applications and systems. To use certain features of the Services and/or Third-Party Products, Client may be required to obtain access to such applications or systems from a third-party provider (“TPP”). Notwithstanding any language contained herein to the contrary, PacketWatch is not responsible for any limitations, lack of capability, availability, compatibility, responsiveness or general degradation of Service(s) arising from the use of a TPP. In addition, PacketWatch is not responsible for Client’s access to, operation or maintenance of third-party applications not sold to Client by PacketWatch. If Client is utilizing a TPP, then it shall (i) provide the TPP a copy of the relevant service description and/or service level management description, if any; (ii) be responsible for notifying and coordinating between PacketWatch and the TPP regarding any scheduled downtime, maintenance windows, etc., as necessary; and (iii) provide PacketWatch the ability to open support tickets and communicate directly with the TPP on behalf of Client as may be requested from time to time.
9. CLOUD SERVICE PROVIDER FEES. In the event that Client utilizes a third-party cloud service provider (e.g. Amazon Web Services, Microsoft Azure, Google Cloud, IBM Cloud, or other cloud service provider of a similar nature) in connection with the Services, Client shall be liable for all fees due to such cloud service provider, howsoever arising, regardless of whether such fees are impacted by PacketWatch’s provision of the Services hereunder.
10. CYBER SECURITY INCIDENT. In the event the Services performed by PacketWatch hereunder involve PacketWatch’s continuous monitoring of any portion of the Client’s cyber security environment, and a Cyber Security Incident (defined below) occurs in that environment during the time that PacketWatch is performing such Services, Client agrees to reasonably cooperate with PacketWatch, including granting PacketWatch access to Client's systems as necessary to reduce impact and determine the cause and scope of the incident. “Cyber Security Incident” means a violation or imminent threat of violation of cyber security policies, acceptable use policies, or standard cyber security practices which results in misuse, damage, denial of service, compromise of integrity, or loss of confidentiality of a network, computer, application, or data. PacketWatch and its Affiliates, directors, officers, employees, and agents will not be liable or responsible for Cyber Security Incidents, third party hacking attempts or attacks, viruses, malware and similar software programs, and denial of service attacks.
11. WARRANTIES.
    1. PACKETWATCH Representations, Warranties, and Covenants.
       1. General. PacketWatch represents and warrants to Client that (i) these Terms have been validly executed and delivered by PacketWatch and that these Terms constitute the legal, valid, and binding obligation of PacketWatch enforceable against PacketWatch, (ii) PacketWatch has all requisite corporate power and authority to enter into these Terms and to carry out the transactions contemplated by these Terms, (iii) the execution, delivery, and performance of these Terms and the consummation of the transactions contemplated by these Terms have been duly authorized by all requisite corporate action on the part of PacketWatch, (iv) PacketWatch’s execution and delivery of these Terms and PacketWatch’s performance or compliance with these Terms will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement, or instrument to which PacketWatch is bound or to which PacketWatch’s properties are subject, and (v) there are no pending or threatened lawsuits, actions, or any other legal or administrative proceedings against PacketWatch which, if adversely determined against PacketWatch, would have a material adverse effect on PacketWatch’s ability to perform its obligations under these Terms.
       2. Third-Party Product. PacketWatch warrants that it has full right, power, and authority to sublicense the Sublicenses and to resell the Third-Party Products to Client, and that the Third-Party Products are free and clear of all liens and similar encumbrances of any kind.
       3. PacketWatch Resource Performance. PacketWatch warrants that PacketWatch Resources, when used as permitted by PacketWatch and in accordance with the instructions in the documentation, will operate substantially as described in the Order. PacketWatch will, at its own expense, use commercially reasonable efforts to (a) correct any reproducible error that Client reports to PacketWatch in writing regarding an PacketWatch Resource, or (b) replace the defective PacketWatch Resource. In the event that PacketWatch, in its sole discretion, may not achieve either (a) or (b) as a remedy for breach of this warranty, PacketWatch agrees to accept return of the non- conforming PacketWatch Resource, terminate the Order related thereto, and refund Client all prepaid fees related to the non- conforming PacketWatch Resource.
       4. Service Performance. PacketWatch shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform Services in a professional and workmanlike manner in accordance with applicable laws and governmental regulations. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by PacketWatch or by third-party Vendors, or because of other causes beyond PacketWatch’s reasonable control, but PacketWatch shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PACKETWATCH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
       5. Disclaimers of Warranty. PACKETWATCH WILL NOT BE RESPONSIBLE FOR NONCONFORMITIES IN SERVICE ARISING FROM INACCURATE OR INCOMPLETE DATA OR INFORMATION PROVIDED BY CLIENT, FOR FAILURES OR DELAYS CAUSED BY CLIENT’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THE ORDER OR THESE TERMS, OR FOR FAILURES, DAMAGES OR DELAYS CAUSED BY THIRD PARTY PROVIDERS, THIRD PARTY VENDORS, OR THIRD-PARTY PRODUCTS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS.” PACKETWATCH HEREBY WAIVES AND DISCLAIMS ALL OTHER WARRANTIES AS TO THE SERVICES AND THIRD-PARTY PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
    2. Client’s Representations, Warranties, Covenants and Responsibilities.
       1. General. Client represents and warrants to PacketWatch that (i) these Terms have been validly executed and delivered by Client and that these Terms constitute the legal, valid, and binding obligation of Client enforceable against Client, (ii) Client has all requisite corporate power and authority to enter into these Terms and to carry out the transactions contemplated by these Terms, and (iii) the execution, delivery, and performance of these Terms and the consummation of the transactions contemplated by these Terms have been duly authorized by all requisite corporate action on the part of Client. In addition, Client represents, warrants, and agrees that Client is solely responsible for: (A) Client’s information security program, environment, controls, and processes, (B) making all management decisions related to Client’s information security program, environment, controls, and processes, (C) the decision whether to implement, and the actual implementation, of any recommendations made by PacketWatch, and (D) determining the sufficiency of any Services or Third- Party Products purchased by Client.
       2. Services. Client agrees to reasonably cooperate with PacketWatch in the performance of the Services. Client represents and warrants that it will (i) comply with all relevant security industry standards and practices, and (ii) use the Services only in compliance with PacketWatch’s standard published policies then in effect and all applicable laws and regulations. Although PacketWatch has no obligation to monitor Client’s use of the Services, PacketWatch may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
       3. Third-Party Products. Client acknowledges that (i) it has made the selection of the Third-Party Products based on its own judgment and expressly disclaims any reliance upon statements made by PacketWatch, (ii) Client’s use of the Third-Party Products is subject to the applicable Vendor’s end user license agreement, service level agreement, terms of use or service, or other end user agreements or documents, (iii) the only representations, warranties, indemnities, and other terms relating to the Third-Party Products are those offered by the applicable Vendor, and PacketWatch will have no responsibility in connection therewith, (iv) it expressly waives any claim against PacketWatch based upon any infringement or alleged infringement of any patent, copyright, trademark, or other intellectual property rights with respect to the Third-Party Products, and (v) it assumes all responsibility for ensuring that the Third-Party Products are used in accordance with all applicable laws and regulations.
12. INTELLECTUAL PROPERTY OWNERSHIP. Deliverables, as specified in an Order, shall be the property of Client. To the extent PacketWatch Intellectual Property is incorporated into any Deliverables, PacketWatch grants to Client an irrevocable, nonexclusive, royalty-free, limited license for Client to use PacketWatch Intellectual Property to the extent necessary to use such Deliverable for its internal purposes only. All PacketWatch Intellectual Property is and shall remain the sole and exclusive property of PacketWatch. Client shall not have or acquire any right, claim, title, or interest in or to any PacketWatch Intellectual Property. Client acknowledges that PacketWatch may (a) retain archival copies of any and all derivative works of Deliverables and work product and (b) may use and disclose general statistics and non-Client identifiable information regarding vulnerabilities and security issues but only if the identity of the Client is not disclosed and cannot be reasonably ascertained or inferred. Upon the request of the other Party, each Party shall take such actions, and shall cause its personnel to take such actions, including execution and delivery of all documents, as may be appropriate or desirable to confirm such rights. The information contained in the PacketWatch Resources is Confidential Information of PacketWatch, contains trade secrets, and is proprietary know-how belonging to PacketWatch. Client is granted access to the PacketWatch Resources and Sublicense subject to Client’s obligation to hold the information provided in confidence. Further, the presence of copyright notices on the Confidential Information does not constitute publication or otherwise impair the confidential nature thereof. Client agrees not to use, print, copy, provide, or otherwise make available, in whole or in part, any portion of the Confidential Information or modifications of it or related material except in accordance with these Terms.
13. LIMITED LICENSE GRANT AND RESTRICTIONS- PACKETWATCH RESOURCES AND SUBLICENSES.
    1. License and Ownership. PacketWatch grants to Client a non-exclusive, nontransferable, non-assignable, limited right and license to access and use specified PacketWatch Resources or Sublicenses, as applicable. Notwithstanding anything to the contrary in these Terms, PacketWatch, its licensors and/or Vendors, as applicable, own and retain all right, title and interest in and to the PacketWatch Intellectual Property, as well as the Intellectual Property Rights in the PacketWatch Property and Sublicensed Property including any enhancements, modifications or derivative works thereof. Client retains all ownership rights to Client Data and Client Content. Unless a particular right is expressly granted herein, it is expressly excluded from this license.
    2. Restrictions. Client may only use the PacketWatch Resources and the Sublicenses for its own lawful, internal business purposes. Except as expressly permitted by these Terms or the executed Order, Client will not, and will not allow any third party to: (a) copy, modify, adapt, alter, translate, or create derivative works of the PacketWatch Resources or Sublicenses; (b) sell, resell, lend, loan, lease, license, operate as a service bureau, managed service, sublicense or transfer the PacketWatch Resources or Sublicenses; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the PacketWatch Resources or Sublicenses (except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation); (d) knowingly take any action that would cause the PacketWatch Resources or Sublicenses to be placed in the public domain; (e) remove, alter or obscure any proprietary notices of PacketWatch, its licensors or Vendors included in the PacketWatch Resources, Sublicenses or Order documents; or (f) use the PacketWatch Resources or Sublicenses for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels. Client will not allow any access to or use of the PacketWatch Resources or Sublicenses by anyone other than Client, or its employees, contractors or agents, and any such use must be consistent with the terms, conditions and restrictions set forth in these Terms. Client will be responsible for its Users’ compliance with these Terms and liable for its Users’ breach thereof. Client will ensure that it has obtained all necessary consents and approvals for PacketWatch to access Client Data for the purposes permitted under these Terms. If Client is in breach of this Section, and such breach is not cured in accordance with these Terms, PacketWatch may suspend access to the PacketWatch Resources and/or Sublicenses, in addition to any other rights and remedies PacketWatch may have at law or in equity.
14. IMPORT/EXPORT. Client acknowledges that the PacketWatch Resources, Sublicenses, and Third-Party Products, as well as any technical data related thereto, may be subject to Export Control Laws and Client hereby agrees not to export, re-export, or otherwise distribute such products in violation of any Export Control Laws. Client warrants that it will not purchase, export, or re-export any PacketWatch Resources, Sublicenses, or Third-Party Products with knowledge they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless permitted by applicable laws. Client further warrants it will not export or re-export, directly or indirectly, any such products to embargoed countries or transfer or sell such products to companies or individuals listed on applicable restricted parties lists including, without limitation, the Denied Persons List published by the United States Department of Commerce and the Specially Designated National List published by the United States Department of the Treasury.
15. RISK OF LOSS AND TITLE TO THIRD-PARTY PRODUCTS. Title to Third-Party Products shall vest in Client upon delivery to the carrier for shipment (FOB shipping point). PacketWatch will ship and deliver the Third-Party Products to the Client’s specified place of delivery using a carrier selected by PacketWatch; provided, however, that Client shall be responsible for clearing any necessary customs with respect to the Third-Party Products. Client shall bear the risk of loss, damage, and destruction from every cause once the Third-Party Products have been delivered to the carrier. Client shall unload and inspect the Third-Party Products upon delivery, and Client shall be responsible for notifying PacketWatch of any defect or damage to the Third-Party Products or of any claim arising hereunder within five (5) days of the delivery of the Third-Party Products. Client’s failure to advise PacketWatch of such defect, damage, or claim within the specified time period will release PacketWatch and the carrier from any liability for damages related thereto.
16. CONFIDENTIAL INFORMATION.
    1. Obligations. The Receiving Party agrees not to disclose or use any Confidential Information of the Disclosing Party in violation hereof and to use Confidential Information of the Disclosing Party solely for the purposes hereof. Upon demand by the Disclosing Party, the Receiving Party shall return to the Disclosing Party all copies of the Disclosing Party's Confidential Information in the Receiving Party's possession or control and destroy all derivatives and other vestiges of the Disclosing Party's Confidential Information; provided that the Receiving Party may retain one archival copy solely for the purpose of administering its obligations under the Order. All Confidential Information of the Disclosing Party shall remain the exclusive property of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, officers, directors and representatives who have a reasonable need to know such Confidential Information in connection with the Services, and who are bound to confidentiality terms or have signed a non-use and non-disclosure agreement similar in content to the provisions hereof, prior to any disclosure of Confidential Information to such parties. Notwithstanding anything to the contrary, PacketWatch shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and PacketWatch will be permitted to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes solely in connection with the Services and other PacketWatch offerings and for no other purposes whatsoever; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
    2. Injunction. Both Parties agree that violation of any provision of this Section would cause the Disclosing Party irreparable injury for which it would have no adequate remedy at law, and that the Disclosing Party will be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it.
17. DATA PRIVACY. If during these Terms Client provides to PacketWatch, its vendors, or subcontractors any personally identifiable information (“PII”), or access to PII, then (a) Client will inform PacketWatch regarding the type of PII, and (b) Client will provide instruction on the applicable handling, storage, cross-border restrictions, and destruction of such PII. Client hereby represents that, to the extent required under applicable international data privacy laws, Client has obtained express consent from any and all data subjects whose PII will be provided to PacketWatch for processing (and any cross-border transfer, if any) hereunder. Both Client and PacketWatch agree that they will abide by all applicable international laws pertaining to handling of PII. To the extent that PacketWatch processes any PII for Client in connection with the project, a separate document relating to such Data Processing Terms and Conditions shall also apply.
18. INDEMNIFICATION. 
    1. General. Except to the extent caused by the acts, errors or omissions of the indemnified Party, each Party shall indemnify, defend and hold harmless the other Party and its Affiliates and their respective officers, directors, employees and agents from and against third party claims made against the indemnified Party for death, bodily injury or physical damage to or loss or destruction of any real or tangible personal property to the extent caused by the indemnifying Party’s gross negligence or willful misconduct.
    2. IP Infringement. PacketWatch shall hold Client harmless from liability to third parties resulting from infringement by the Services of any United States patents issued before delivery of such Services or any copyright or misappropriation of any trade secret, provided PacketWatch is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. PacketWatch will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Services or portions or components thereof: (i) not supplied by PacketWatch, (ii) made in whole or in part in accordance to Client specifications, (iii) that are modified by Client after delivery, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination which were unauthorized by PacketWatch, (v) where Client continues use of the infringing Services following PacketWatch’s supplying a modified, amended or replacement version of the Services, or (vi) where Client’s use of such Services is not strictly in accordance with these Terms. Client will reimburse PacketWatch for any reasonable out-of-pocket expenses incurred by PacketWatch if the cause of the infringement is attributable to Client’s actions as stated in this paragraph. In the event of such a claim, action or allegation being brought or threatened or in the event an injunction is issued or threatened, PacketWatch may, at its sole option and expense, either procure for Client the right to continue to use the Services, modify or replace the Services so as to avoid infringement, or accept the return of the infringing Services and return the license fee paid for such infringing Services. THE PROVISIONS OF THIS SECTION SET FORTH PACKETWATCH’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY RIGHTS OF ANY KIND.
    3. Client’s Use of Services. Client represents, covenants, and warrants that Client will use the Services (including but not limited to Sublicenses) only in compliance with these Terms, any relevant Service descriptions related to the Order and all applicable laws and regulations. Client hereby agrees to defend, indemnify and hold harmless PacketWatch and applicable developers of the Sublicenses against any third-party claims for damages, losses, liabilities, settlements and expenses (including reasonable costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation based on Client’s gross negligence or willful misconduct or otherwise from Client’s use of Services. Although PacketWatch has no obligation to monitor Client’s use of the Services, PacketWatch may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
19. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, VENDORS OR SUPPLIERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), FOR LOST PROFITS OR REVENUES, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, FOR EQUIPMENT OR SYSTEMS OUTAGES OR DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE ORDER OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PACKETWATCH’S, PACKETWATCH’S AFFILIATES’, THEIR VENDORS OR SUPPLIER’S, OR THEIR RESPECTIVE OFFICERS’, DIRECTORS’, EMPLOYEES’ OR AGENTS’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, THE PACKETWATCH RESOURCES AND SUBLICENSES, THE THIRD-PARTY PRODUCTS, THE ORDER AND OTHERWISE (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND INTENTIONAL ACTS OR OMISSIONS) EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO PACKETWATCH FOR THE SPECIFIC SERVICES OR THIRD-PARTY PRODUCTS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. NO ACTION REGARDING THE SERVICES OR THIRD-PARTY PRODUCTS, OTHER THAN WITH RESPECT TO PAYMENTS HEREUNDER, MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF EITHER (A) THE CONCLUSION OF SERVICES OR DELIVERY OF THIRD-PARTY PRODUCTS UNDER THE ORDER, OR (B) THE CLAIMANT PARTY'S KNOWLEDGE OF THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
20.  INSURANCE. The Parties agree to carry and maintain in force at all times during the term of the Services insurance coverage with minimum policy limits as follows: (i) workers’ compensation with limits as prescribed by applicable state law and Employer’s Liability with limits of $1,000,000.00 per accident and in the aggregate, (ii) commercial general liability with limits of $1,000,000 per occurrence and $2,000,000 in the aggregate, and (iii) professional liability and cyber liability with limits of $2,000,000 in the aggregate. The Parties agree to provide to each other certificates of insurance evidencing coverage upon request.
21. FORCE MAJEURE. Neither Party shall be liable for delays, failure to meet its obligations under these Terms, or damages of any kind due to events, circumstances, or causes beyond its reasonable control or otherwise related to war, terrorism, riots, acts of God, floods, fire, earthquakes, hacking attempts or attacks, systems or data not within PacketWatch’s control, viruses, malware, and similar software programs, and denial of service attacks and other malicious conduct. The nonperforming Party must promptly notify the other Party of such event, circumstance, or cause and take all reasonable steps to recommence performance promptly. Notwithstanding the foregoing, no such events, circumstances, or causes shall excuse Client’s obligation to pay undisputed amounts when due hereunder.
22. NON-SOLICITATION. Client agrees that it and its Affiliates, and their employees, will not, either during or for a period of twelve (12) months after termination or expiration of the Order, solicit to hire as an employee or contractor any of PacketWatch’s and/or PacketWatch’s Affiliates’ employees. Publication of open positions in media of general circulation (e.g., Internet website job postings) will not constitute solicitation of employees. If Client or one of its Affiliates hires any employee(s) of PacketWatch and/or PacketWatch’s Affiliates prior to expiration of the twelve (12) month period, as an employee or contractor, Client agrees to pay to PacketWatch or PacketWatch’s Affiliate, as applicable, within thirty (30) days of the hiring date, an amount equal to the person’s annual compensation (including bonuses) at PacketWatch or PacketWatch’s Affiliate at the time of the employee’s departure therefrom.
23. STAFFING AND LOCATION. PacketWatch intends to utilize personnel who are employees of PacketWatch in provision of Services. However, PacketWatch may utilize, in performance of the Services, staff augmentation consultants who are used by PacketWatch in its normal course of business and subcontractor personnel. Unless otherwise expressly stated in the Order, the Services may be rendered at Client's facilities, PacketWatch's facilities or at other suitable locations within PacketWatch’s discretion.
24. PACKETWATCH’S AFFILIATES. PacketWatch’s Affiliates and/or employees or consultants of PacketWatch’s Affiliates may provide Services under the Order. Such Affiliates and/or their employees or consultants who provide Services will be subject to these Terms. Only the entity who provides Services will be liable under these Terms with respect to such Services. There shall be no joint and several liability with respect to entities that do not provide Services under these Terms.
25. THIRD PARTY BENEFICIARIES. Notwithstanding anything to the contrary herein, Client hereby agrees that for any software, hardware or service sublicensed by PacketWatch to Client hereunder, the developer or Vendor of such software, hardware or service will be deemed a third-party beneficiary of these Terms.
26.  ASSIGNMENT. Except as otherwise set forth in these Terms, neither Party may assign the Order or these Terms without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign the Order or these Terms without consent to any parent, subsidiary or other Affiliate, in connection with a merger involving any of its Affiliates or in connection with an acquisition of all or substantially all of such Party’s assets or equity interests. In addition, PacketWatch may assign the Order or these Terms to an Affiliate without consent.
27.  NOTICES. All notices and other communications hereunder will be in writing and deemed delivered one (1) day after being sent by a nationally recognized overnight courier service or three (3) days after being sent certified U.S. mail, return receipt requested, postage prepaid. All notices and other communications hereunder will be given to the Party at the address indicated in the Order.
28. GOVERNING LAW. The Order and these Terms will be governed by, and construed and enforced in accordance with, the laws of the State of Arizona, excluding conflicts of law principles. Exclusive jurisdiction for any lawsuit or claim in connection with the Order and these Terms shall be in the state or federal courts of the State of Arizona.
29. EXECUTION IN COUNTERPARTS. The Order may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of the Order by electronic transmission or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart. Either Party may maintain a copy of the Order in electronic form.
30.  MISCELLANEOUS. These Terms are made a part of and incorporated into the Order. The Order and these Terms constitute the entire agreement between the Parties with respect to its subject matter. The Parties agree that as of the Effective Date, these Terms will supersede, terminate and replace in its entirety all prior services agreements, product purchase agreements, and confidentiality agreements between the Parties or their predecessors in interest. These Terms shall govern in the event of a direct conflict with the Order unless the Order expressly specifies that the Order shall control in the event of a direct conflict. During the term of the Order, a purchase order, acknowledgment form or similar routine document may be used. The Parties agree that any provisions of such routine documents, which purport to add to or change, or which conflict with the provisions of the Order or these Terms shall be deemed deleted and have no force or effect. No forbearance, failure or delay in exercising any right, power or privilege is waiver thereof. In the event a court of competent jurisdiction holds any provision of the Order or these Terms invalid or unenforceable, the remainder of the Order and these Terms will continue in effect. Each Party agrees that it will not, without prior written consent of the other Party, use in advertising or other publicity the name of the other Party.