These TERMS AND CONDITIONS (“Terms”) apply to and govern all products, Software and Services provided by Vigilant LLC and its Affiliates (“Vigilant”) and any Person who uses any Vigilant products, Software and Services (“Customer”). Vigilant reserves the right to revise or otherwise modify these Terms at any time with or without notice to Customer. If revised or modified, the revised Terms will be posted on this website and will thereafter be immediately effective for all later agreements between Vigilant and Customer or any subscription agreements associated with any prior agreement entered into between the Parties.
Customer acknowledges that the configuration of Customer’s environment may require Vigilant to alter the standard deployment of its Services and may affect the effectiveness or accuracy of the Services. Customer shall promptly notify Vigilant of any changes to its software, hardware, or configuration of the Customer environment that may impact Vigilant’s performance of the Services. At times, Vigilant may make recommendations to Customer as part of Services that may require changes to Customer’s environment. Customer is solely responsible for any changes made or not made to its environment during the term of any Agreement. Vigilant may monitor, intercept, and review activities of Customer employees, contractors, and other individuals with access to Customer IT resources and communications systems, including but not limited to email (both outgoing and incoming), instant messages, and internet postings and activities. This might include, without limitation, the monitoring, intercepting, accessing, recording, disclosing, inspecting, reviewing, retrieving, and printing of transactions, messages, communications, postings, log-ins, recordings, and other uses of the systems as well as keystroke capturing and other network monitoring technologies. Vigilant may also store copies of such data and communications for a period of time. Customer consents to such activities by Vigilant.
Vigilant grants to Customer, exercisable solely by Authorized Users, a non-exclusive and non-transferable right and license to use the Software and Services during the Term. Customer shall use the Software and Services solely for internal business purposes and as set forth in the Agreement. Customer shall have transfer, assignment or sublicense rights absent express written consent from Vigilant. Customer acknowledges and agrees that Customer is solely responsible for ensuring that Authorized Users comply with the Agreement, and Customer shall be solely responsible for any breach of the Agreement due to the action or inaction of any Authorized User or of any employee, agent, customer, or contractor of Customer. Customer shall, and shall not permit any third party to: (i) remove of modify any markings or reference to Vigilant or its licensors’ proprietary rights from Vigilant Software or Services; (ii) make the Software, Services, or any materials thereof available in any manner to any third party for use in the third party’s business operations; (iii) download, reproduce, copy, republish, alter, adapt, modify, improve, translate, create derivative works from, reverse engineer any part of the Services or Software, disassemble, decompile or otherwise attempt to reveal the trade secrets, know-how, or other Intellectual Property Rights underlying or included in the Software or Services; (iv) access or use the Software or Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Vigilant; (v) interfere in any manner with the hosting of the Software or the Services; (vi) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit time-sharing, or otherwise commercially exploit or make the Services, Software, or related materials available to any third party; or (vii) otherwise use the Services or Software not in accordance with the Agreement. Upon expiration or termination of the Agreement, for any reason, Customer’s right to access or use the Software and Services shall immediately terminate.
Vigilant will assign to each Authorized User a unique password and identification name (“Authorized User Credentials”). Authorized User Credentials allow the Authorized User to access the administrative components of the Software and Services. Customer must immediately inform Vigilant if it discovers or reasonably believes that Authorized User Credentials or any other security mechanism issued by Vigilant is lost or forgotten, has or is likely to become known to someone not authorized to use it or is being or is likely to be used in an unauthorized way. In such an event, Customer must complete such security checks as Vigilant deems appropriate. Vigilant reserves the right to suspend access to the Software and Services if at any time Vigilant considers that there is or is likely to be a breach of security or if Customer fails to comply with Vigilant’s instructions or requests in relation to security matters.
Vigilant may use software/hardware for the Services that are subject to shrink-wrap, click-through, on-screen, open source, or similar licensing arrangements that Customer must timely accept during Vigilant performance of the Services. Vigilant shall obtain Customer’s approval prior to accepting the terms of such agreements on behalf of Customer if acceptance of such agreement will require payment from Customer. Where applicable, Vigilant will convey to Customer the requisite license rights to software used by Vigilant to provide the Services. Customer shall either directly pay all costs of all such software/hardware, including all licensing fees, or promptly reimburse Vigilant for all such costs.
The Software and Services may utilize one or more open source packages. This open source software is governed by the terms and conditions of the applicable open source license, and Customer agrees that it will be bound by the terms and conditions of the applicable open source license in connection with its use and distribution of the open source software in the Software and Services. The open source software, the applicable open source licenses, and other open source notices will be made available upon request.
The Agreement shall commence on the Effective Date and remain in effect for the term identified in the Agreement (the “Initial Term”). If no Initial Term is identified in the Agreement, the Initial Term shall be deemed to be three (3) years from the Effective Date and shall automatically renew for successive three (3) year periods (each a “Renewal Term”), unless either Party gives at least ninety (90) days prior written notice of intent to cancel to the other Party before the expiration of the then current term in effect (including the Initial Term or any Renewal Term, as the case may be). The Initial Term and any Renewal Term are referred to collectively as, the “Term.”
Vigilant may terminate the Agreement immediately if in Vigilant’s sole discretion Customer misuses the Software or Services, engages in illegal practices, or otherwise materially breaches the Agreement. Vigilant may also terminate the Agreement at any time, for any cause, upon thirty (30) days prior written notice. Customer may terminate the Agreement if Vigilant materially breaches the terms of the Agreement and fails to cure such breach within thirty (30) days of written notice.
Upon and after the termination or expiration of any Agreement for any or no reason:
The provisions set forth in the following sections, and any other right or obligation of the Parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 3.3, Section 4, Section 6, Section 7, Section 8, Section 9, Section 10, Section 12, and Section 13.
Customer will provide Customer Information to Vigilant in connection with the Agreement and Services. Customer will remain the sole and exclusive owner of all right, title and interest in and to all Customer Information, including all Intellectual Property Rights relating thereto, subject only to the licenses granted in the Agreement. Subject to the terms and conditions of the Agreement, Customer hereby grants Vigilant a limited, royalty-free, fully-paid up, non-exclusive, transferable and sublicensable license to Process the Customer Information solely as reasonably necessary to provide the Services and as reasonably necessary to exercise any of the rights granted to Vigilant under the Agreement.
Vigilant is and will remain the sole and exclusive owner of all right, title and interest in and to the Vigilant Materials, including all Intellectual Property Rights relating thereto, subject only to any license expressly granted to Customer in the Agreement. Excepting any limited license expressly provided in the Agreement, nothing contained in the Agreement shall be construed as granting Customer, or any third party, any right, title, or interest in or to any Vigilant Materials, in each case whether by implication, estoppel or otherwise.
In connection with the Agreement and Services, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to the exclusions listed below, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party reasonably considers confidential or proprietary, including information consisting of or relating to the Disclosing Party technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations that is either marked, designated or otherwise identified as “confidential” or that should reasonably be understood to be confidential considering the circumstances of its disclosure. Without limiting the foregoing, (i) all Customer Information is and will remain the Confidential Information of Customer and (ii) all Vigilant Materials including the Software, Specifications and Documentation are and will remain the Confidential Information of Vigilant, and (iii) the terms of the Agreement are the Confidential Information of Vigilant.
Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with the Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its employees, agents, contractors, or other representatives’ noncompliance with the Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party (i) shall not access or use, or permit the access or use of Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with or as expressly authorized by the Agreement, and (ii) shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own similarly sensitive information and in no event less than a reasonable degree of care.
If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this paragraph, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party’s obligations hereunder with respect to the Confidential Information so disclosed.
IN NO EVENT WILL VIGILANT BE LIABLE UNDER THE AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES EVEN IF ADVISED OF OR MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL VIGILANT’S LIABILITY UNDER THE AGREEMENT EXCEED THE FEES FOR SERVICES PAID BY CUSTOMER UNDER THE AGREEMENT IN THE ONE (1) YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
In no event will Vigilant be liable or responsible to Customer, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Vigilant’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of the Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Customer agrees (i) that Vigilant may identify Customer as a recipient of Services and use Customer’s name and logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief Customer profile for use by Vigilant for promotional purposes on any promotional materials, including web sites and social media, owned and/or controlled by Vigilant.
Except as otherwise expressly set forth in the Agreement, all notices, requests, consents, claims, demands, waivers and other communications under the Agreement have binding legal effect only if in writing and addressed to, in the case of Customer, the name and address or email address identified on the Agreement or, in the case of Vigilant, to firstname.lastname@example.org or to such other address or such other person that such Party may designate from time to time in accordance with this paragraph. Notices sent in accordance with this paragraph shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
The Agreement, including any other documents incorporated therein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. The Agreement may be amended, modified or changed only by a writing signed by both Parties. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of any inconsistency between these Terms and the Agreement or between these Terms and any other documents incorporated herein by reference, the following order of precedence governs (other than an exception expressly set forth as such therein): (a) first, these Terms; (b) second, the Agreement; and (c) third, any other documents incorporated herein by reference.
During the Term and for two (2) years following the expiration or termination of any Agreement, Customer agrees not to: (i) directly or through others, solicit or attempt to solicit or hire any Vigilant Personnel; (ii) encourage Vigilant Personnel to terminate his or her relationship with Vigilant; or (iii) hire or directly contract Vigilant Personnel absent Vigilant’s express prior written consent.
Customer acknowledges that a breach or threatened breach of any of the restrictive covenants in the Agreement or these Terms would give rise to irreparable harm to Vigilant, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Customer or its Affiliates of any such obligations, Customer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
Customer shall not assign, delegate, or subcontract any portion of its rights, duties, or obligations under the Agreement without the prior written consent of Vigilant. Any purported assignment in violation of this section and shall be null and void. Customer agrees that Vigilant may subcontract services to be performed in connection with the Agreement; provided that any such subcontracting arrangement will not relieve Vigilant of any of its obligations hereunder. Vigilant may assign the Agreement, including its rights and duties hereunder, without the consent of Customer.
If any provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify the Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
The Agreement shall be solely and exclusively governed, construed and enforced in accordance with the Laws of the State of Ohio (without regard to the conflicts of Law provisions thereof). The Parties hereby expressly consent to the exclusive jurisdiction and venue of the federal and state courts governing Butler County, Ohio to adjudicate any dispute arising out of the Agreement, and hereby waive the affirmative defenses of lack of personal jurisdiction, lack of venue, and forum non-conveniens.
Customer irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
No third party shall be deemed a third-party beneficiary of the Agreement. Any Customer Affiliate networks may be monitored under the Agreement as long as the Affiliate is wholly owned by Customer, the Affiliate is separately identified in the Agreement, and the Affiliate network traffic passes through the same data pipe.
Export Laws of the United States and any other relevant local export Laws apply to the Software. Customer agrees that such export control Laws govern Customer’s use of the Software and Services (including technical data) and any deliverables provided under the Agreement. Customer agrees to comply with all such export Laws (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs, and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of such Laws, or will be used for any purpose prohibited by such Laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Vigilant may, at its sole discretion, audit Customer’s use of the Services during the Term. Customer agrees to cooperate in good faith with Vigilant’s audit and provide reasonable assistance and access to all information Vigilant deems necessary to complete the audit. Any such audit shall not unreasonably interfere with Customer’s normal business operations. If any audit produces use by Customer in excess of the Agreement, Customer agrees to pay, within thirty (30) days of written notification, any fees applicable to Customer’s use of the Services in excess of its rights under the Agreement. If Customer does not pay such fees, Vigilant can, at its sole discretion, terminate the Services and/or the Agreement. Customer agrees that Vigilant shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.
The Uniform Computer Information Transactions Act does not apply to the Agreement. Customer understands that Vigilant business partners, including any third-party firms retained by Customer to provide computer consulting services, are independent of Vigilant and are not Vigilant agents. Vigilant is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Vigilant subcontractor on an engagement ordered under the Agreement.