360 Privacy, LLC
Terms of Service Agreement
This Terms of Service Agreement (this “Agreement”) is made and entered into between 360 Privacy, LLC (“360 Privacy”), a Delaware limited liability company and the individual, corporation, or other entity (“Client”) that completes 360 Privacy’s Enrollment Form (“Enrollment Form”) or signs a 360 Privacy Order Form (“ Order Form”). The Effective Date (“Effective Date”) of this Agreement shall be the first date that an Order Form is fully executed by 360 Privacy and Client. This Agreement governs any Order that references it. 360 Privacy and Client are individually referred to herein as a “Party” and collectively as the “Parties.”
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360 Privacy has developed and owns a proprietary cloud-based technology solution designed to, among other things, scan, monitor and remove certain personally identifiable information of its users from various websites (the “Solution”); and
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Client desires to procure from 360 Privacy, and 360 Privacy desires to provide to Client, on a non-exclusive basis, certain services utilizing the Solution as further described in this Agreement, on the terms and conditions specified herein.
For good and valuable consideration, including the mutual covenants in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
1. SERVICES.
1.1 Services. Subject to the terms and conditions of this Agreement, during the Term, 360 Privacy will perform the services purchased by Client and specifically set forth in the applicable Order (the “Services”) in accordance with this Agreement and the applicable Order. To the extent there are any conflicts or inconsistencies between the terms of this Agreement and the terms of an Order, the terms of the Order shall govern. For Services descriptions, see: https://www.360privacy.io/productsandservices.
1.2 Authorized Users. Subject to the terms and conditions of this Agreement and the applicable Order, Client may, during the Term, allow Authorized Users to receive the Services. Client shall be solely responsible for ensuring that each Authorized User complies with the terms and conditions of this Agreement and the applicable Order and shall be fully liable to 360 Privacy for all acts and omissions of each Authorized User that would, if committed or omitted by Client, be a breach of this Agreement. “Authorized User” means the directors, officers, and employees of Client and any Client affiliates who are authorized to receive the Services from 360 Privacy. The number of permitted Authorized Users will be set forth in an Order. Each Authorized User can be replaced no more than once per twelve (12) month period, subject to 360 Privacy Approval.
1.3 Credentials. As part of the Services, 360 Privacy will provide Client with access to an online portal to view reporting and other notifications relating to the Services. Client may allow Authorized Users to access the portal using a unique user login and password (“Credentials”). Client shall not allow multiple individuals to share one common Credential. Any sharing of Credentials by Client or an Authorized User with additional users or in any manner that exceeds the usage limits set forth in the applicable Order is strictly prohibited and shall constitute a material breach of this Agreement by Client. Client is solely responsible for maintaining the security and confidentiality of the Credentials, for revoking any and all Credentials no longer being used by an Authorized User and for all activities, obligations, charges, and liabilities that occur from any access using the Credentials, whether or not authorized by Client. Client must immediately notify 360 Privacy of any unauthorized use of any Credentials or any other breach or threatened breach of security of which Client becomes aware.
1.4 Data. Client shall provide to 360 Privacy requested data and information, which may include name, e-mail address, IP address, home address(es), phone number(s), and other contact details of Client and Authorized Users as required for 360 Privacy to provide the Services (collectively, “Client Data”). 360 Privacy will provide the Services using the data security processes, and according to the terms, as stated in the data processing agreement available at https://www.360privacy.io/dataprocessingagreement (the “DPA”). 360 Privacy’s provision of the Services and the collection, use and processing of the Client Data is also subject to the privacy policy available at https://360privacy.com/privacy-policy/ (the “Privacy Policy”).
1.5 Authority. Client acknowledges that provision of the Service involves 360 Privacy using a mixture of automated and manual means to discover and request the removal of Client’s personal information from third party websites. Client hereby appoints 360 Privacy as Client’s agent with the authority necessary to provide the Service, including the right to request removal of Client’s personal information from website operated by third parties, the right to create end user accounts in Client’s name with such websites when reasonably necessary for the discovery or removal of Client’s personal information and the right to create an e-mail account in Client’s name for use in connection with the foregoing. For the avoidance of doubt, 360 Privacy has no authority to act on Client’s behalf in any matter or manner in any way not expressly authorized under the foregoing.
1.6 Use Restrictions. Client shall not (and shall not allow any third party to), directly or indirectly, (i) reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any Service; (ii) modify, translate, or create derivative works based on any 360 Privacy Technology; (iii) rent, lease, lend, distribute, sell, resell, assign, or otherwise transfer or make available any Service to a person other than as permitted by this Agreement and the applicable Order; (iv) use the Service for the benefit of any person or entity other than Client and the Authorized Users, whether for timesharing, service bureau, or other purposes; (v) impersonate any other person in connection with Client’s registration for and use of the Service; (vi) remove any product identification or proprietary-rights notices from any Service reports or the then-current 360 Privacy user guides and manuals for use of the Service designated by 360 Privacy (“Documentation”); (vii) modify, or create derivative works of, any Service; (viii) use the Service in a manner not consistent with the Documentation; (ix) publish or disclose to third parties any evaluation of the Service without 360 Privacy’s prior written consent; or (x) otherwise use any Service except as expressly provided in this Agreement.
1.7 Orders; Deliverables. The Parties shall enter into one or more Orders, which will include the specific Services to be performed by 360 Privacy, the number of Authorized Users, the number of users with certain administrative privileges (“Administrators”), the Parties’ respective responsibilities, and any reports or other deliverables to be provided to Client in connection therewith (the “Deliverables”). Once the Order is signed by both Parties, it shall be incorporated herein by reference and made a part of this Agreement.
1.8 Delays. Each Party acknowledges that the successful and timely rendering of the Services requires good faith and timely cooperation. Both Parties will use commercially reasonable efforts to perform their responsibilities and discharge their obligations in accordance with the applicable Order. Client acknowledges that a failure or delay by it to meet its obligations may impact 360 Privacy’s ability to perform the Services within the estimated time and cost. Client agrees to cooperate and communicate with 360 Privacy as necessary for 360 Privacy to perform the Services. Client and the Authorized Users will cooperate with 360 Privacy in taking actions and executing documents, as appropriate, to achieve the objectives of this Agreement.
2. FEES AND PAYMENT.
2.1 Subscription Fees. Client will pay the fees due for the Service as indicated on 360 Privacy’s invoice and/or related Order (“Subscription Fees”). Subscription Fees are due immediately via credit card or bank transfer through a third-party payment processor. 360 Privacy reserves the right to charge interest on late payments at a rate of 1.5% per month or the maximum rate allowed by law, whichever is less, until paid in full. In the event of any past due amounts, 360 Privacy may suspend (or cancel) all Services without notice to Client until the amounts outstanding are paid in full. In addition to any other right or remedy available to 360 Privacy under this Agreement, at law or in equity, if Client fails to pay amounts when due, 360 Privacy has the option to treat such failure to pay as a material breach of this Agreement and may terminate this Agreement upon written notice to Client. Client’s payment and related payment information is managed through such third-party payment processor, and 360 Privacy bears no responsibility for the third-party payment processor’s use of Client’s payment information. Client represents and warrants that it has the legal right to use the payment method submitted. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. All amounts paid to 360 Privacy are non-refundable except as expressly set forth herein. Client is responsible for any payment processing fees incurred as the result of the reversal of charges through the third-party payment processor. For all renewals, 360 Privacy reserves the right to increase the Subscription Fees upon thirty (30) days written notice to Client. The Subscription Fees are based upon the number of Authorized Users designated in the Order. Each additional Authorized User will require an incremental Subscription Fee in accordance with the then-current rates applicable to the Order.
2.2 Expenses. 360 Privacy’s anticipated expenses, if any, will be set forth in the applicable Order or otherwise agreed by the Parties in writing (“Expenses”). Client will reimburse 360 Privacy for all Expenses incurred by 360 Privacy.
2.3 Taxes. “Tax” or “Taxes” means any and all applicable sales, use, value-added, or similar transaction taxes, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any Services or materials to Client under this Agreement. Taxes shall not include any taxes, fees, levies or other charges based on or measured by the 360 Privacy’s gross or net income, gross receipts, excess profits, net worth, or capital. Client shall be responsible for and shall pay or reimburse 360 Privacy for any and all Taxes. If 360 Privacy has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount will be computed based on the address listed on the Signature Document or Order Form for this Agreement which will be used as the ship-to address on the Order Form and invoiced to and paid by Customer, unless the Customer provides 360 Privacy with a valid tax exemption certificate, authorized by the appropriate tax authority to accounting@360privacy.io
2.3 Free Account. To the extent a subscription to the Service is made available to Client at no charge, 360 Privacy reserves the right, at any time and without prior notice, to discontinue provision of such free subscription and require purchase of a paid subscription for further receipt of the Service.
3. WARRANTIES; DISCLAIMERS.
3.1 Client Materials. Client represents and warrants that: (i) it shall comply with all applicable laws, including any privacy and data security laws, in the performance of its obligations under this Agreement and each Order and its receipt and use of the Services; (ii) it has all rights and authorizations necessary to provide any Client Property (including those owned by any third party) it provides to 360 Privacy in connection with this Agreement and to grant 360 Privacy the right to use them for the purposes of this Agreement.
3.2 Disclaimer of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND 360 PRIVACY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 360 PRIVACY DOES NOT WARRANT THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. 360 PRIVACY MAKES NO REPRESENTATION OR WARRANTY AS TO THE RESULTS CLIENT WILL ACHIEVE FROM RECEIVING THE SERVICES, INCLUDING ANY WARRANTY THAT THIRD PARTY WEBSITES WILL HONOR REQUESTS FOR CLIENT’S PERSONAL INFORMATION TO BE REMOVED OR MAINTAIN ANY REMOVALS WHERE SUCH REQUESTS ARE INITIALLY HONORED. WITHOUT LIMITATION, THE SERVICE IS NOT INTENDED FOR USE IN MITIGATING OR REMOVING ANY RISK OF BODILY HARM, PROPERTY DAMAGE OR OTHER ACTUAL OR PROSPECTIVE LOSS OR DAMAGE OF ANY KIND. 360 PRIVACY DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES WILL AVERT OR PREVENT OCCURRENCES, OR THE CONSEQUENCES THEREFROM, WHICH SUCH SERVICES MAY BE DESIGNED TO DETECT OR AID IN DETECTING.
TO THE EXTENT ANY ASPECT OF THE SERVICE OPERATES UTILIZING PUBLIC NETWORKS, INCLUDING THE INTERNET, CLIENT ACKNOWLEDGES THAT SUCH NETWORKS ARE NOT UNDER THE CONTROL OF 360 PRIVACY AND ARE INHERENTLY UNSECURE. 360 PRIVACY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE PERFORMANCE OR SECURITY OF ANY PUBLIC NETWORK.
360 PRIVACY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
4. LIMITATION OF LIABILITY; INDEMNIFICATION.
4.1 THE MAXIMUM CUMULATIVE LIABILITY OF 360 PRIVACY TO CLIENT RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND 360 PRIVACY’S MAXIMUM REMEDY TO CLIENT FOR ANY AND ALL CAUSES RELATING TO THIS AGREEMENT AND ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT WHETHER ARISING IN CONTRACT (INCLUDING BREACH OF CONTRACT OR BREACH OF WARRANTY), IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF RELIEF (INCLUDING ANY CLAIMS FOR INDEMNIFICATION ARISING UNDER THIS AGREEMENT), SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO 360 PRIVACY UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMIT.
4.2 IN NO EVENT WILL 360 PRIVACY BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER CLIENT HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. FOR THE SAKE OF CLARITY, THE FOREGOING LIMITATION SHALL NOT BE CONSTRUED TO BAR OR EXCLUDE DAMAGES OR JUDGMENTS AWARDED TO A THIRD PARTY IN A CLAIM THAT IS SUBJECT TO INDEMNIFICATION, EVEN IF CLASSIFIED AS SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) BY THE DECIDING COURT, ARBITRATOR, TRIBUNAL OR OTHER AUTHORITY, SUBJECT AT ALL TIMES TO THE LIMITATIONS SET FORTH ABOVE.
4.3 Indemnification.
a)By Client. Client shall indemnify, defend, and harmless 360 Privacy and its affiliates, licensors, data providers, successors, and assigns (and its and their officers, directors, employees, contractors, and agents) (collectively “360 Privacy Indemnitee”) from and against any and all liabilities, losses, damages, deficiencies, penalties, levies, fines, judgments, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) incurred by a 360 Privacy Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any 360 Privacy Indemnitee with respect to: (a) Client’s gross negligence or willful misconduct related to the receipt of the Services; (b) any breach or alleged breach by Client of any of Client’s covenants, representations or warranties set forth in this Agreement; (c) Client’s breach of any applicable law or regulation in connection with Client’s use of the Service or the Solution; (d) any Client Property or any other information supplied by Client or its agents to 360 Privacy; or (e) any alleged infringement or misappropriation of any third-party intellectual property rights based on any modifications to the Solution made by Client or Client’s use of the Service or Solution other than as directed by 360 Privacy. The Client shall not settle any Claim for which defense is sought under this Section 4 without the prior written approval of 360 Privacy, which approval shall not be unreasonably withheld or delayed.
b) By 360 Privacy. 360 Privacy shall indemnify, defend, and hold harmless Client, its employees, officers, directors, agents, successors and permitted assigns (each a “Client Indemnitee”) from and against any and all Losses incurred by a Client Indemnitee based upon or arising out of any Claim that any use of the Services by Client infringes upon that third party’s patent, copyright or trademark, or misappropriates that third party’s trade secret. Notwithstanding the foregoing, 360 Privacy shall have no liability under this Section 9(b) for any Claim which results from (i) any modifications or alterations to the Services by Client, its affiliates, Authorized Users, or any other third party; (ii) use of the Services outside the scope of this Agreement; (iii) continued use of the Services by Client, its affiliates or any Authorized User after Client has received notice of a Claim of infringement or misappropriation and being requested by 360 Privacy to cease such use; (iv) use of the Services in combination with other products or services where the infringement or misappropriation Claim is based on such combination, or where there would be no infringement or misappropriation but for such combination; or (v) failure of Client, its affiliates, or any Authorized User to replace the infringing Services or materials with a non-infringing substitute provided by 360 Privacy. In the event that 360 Privacy becomes aware of an actual or potential Claim that is covered by the indemnity in this Section 4.3(b), 360 Privacy may, in its reasonable judgment, and at its option and expense: (1) obtain for Client the right to continue using the Services that are the subject of the actual or potential Claim; or (2) replace or modify such Services so that they do not infringe or misappropriate the rights of any third party; provided, however, that if 360 Privacy determines that neither of the foregoing options is feasible without resulting in a material adverse consequence to 360 Privacy’s operations or financial condition, 360 Privacy shall be permitted to terminate this Agreement immediately by written notice to Client. THE REMEDIES SET FORTH IN THIS SECTION 4.3(b) CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY AGAINST 360 PRIVACY AND ITS AFFILIATES AND THE COMPLETE LIABILITY OF 360 PRIVACY AND ITS AFFILIATES WITH RESPECT TO ANY CLAIM SUBJECT TO INDEMNIFICATION UNDER THIS SECTION 4.3(b).
c) Notification of Claims. A Party entitled to be indemnified pursuant to this Section 4.3 (the “Indemnified Party”) shall provide prompt written notice to the Party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel of its choice to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in defense of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense. The Indemnifying Party shall not make any settlement of any Claims that might give rise to liability of the Indemnified Party without the prior written consent of the Indemnified Party.
5. PROPRIETARY RIGHTS.
5.1 360 Privacy Property. In providing the Services and Deliverables, 360 Privacy may use certain design tools, content, software (including object code and source code), tools, elements, designs, templates, programs and systems, that were owned by or licensed to 360 Privacy prior to the Effective Date or independently developed by 360 Privacy after the Effective Date and outside of this Agreement (“360 Privacy Property”). 360 Privacy Property expressly includes the Solution and the portal described in Section 1.3 above. Except as otherwise expressly set forth herein, Client shall have no rights in or to the 360 Privacy Property. 360 Privacy shall be the exclusive owner of, and shall retain all right, title and interest in and to, all 360 Privacy Property. Subject to Client’s timely payment of all amounts due pursuant to this Agreement and each Order, 360 Privacy hereby grants to Client during the Term a non-exclusive, non-transferable, license to use 360 Privacy Property solely to the extent embedded in and necessary to use the Deliverables in accordance with this Agreement and the applicable Order.
5.2 Client Property. Client is the exclusive owner of, and shall retain all right, title and interest in and to, all materials and other items provided by Client to 360 Privacy in connection with the Services and/or Deliverables, including Client Data (“Client Property”). Client hereby grants to 360 Privacy during the Term a non-exclusive, non-transferable license to use Client Property solely in connection with the provision of the Services and Deliverables.
5.3 Usage Data. Notwithstanding anything to the contrary contained herein (including Section 5.2 above), 360 Privacy shall have a perpetual, irrevocable right to use, copy, store, modify, and otherwise exploit in any manner any aggregated data or information derived from the access to or use of the Services or Deliverables by Client or the Authorized Users, including to maintain security, monitor performance, and improve the quality and features of its products and services; provided, that such data and information shall not be specifically identifiable to Client or the Authorized Users.
5.4 Feedback. Client may, at Client’s sole discretion, provide 360 Privacy input regarding the Services, Deliverables, or any other products, services, business or technology plans of Client, including comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Services, Deliverables, or other products and/or services of Client (collectively “Feedback”). 360 Privacy shall exclusively own all such Feedback and shall be entitled to use the Feedback for any purpose without notice, restriction or remuneration of any kind to Client.
5.5 Residual Knowledge. 360 Privacy retains the right to use the general knowledge, experience and know-how acquired by it in the course of performing Services for Client (except to the extent the same constitutes Confidential Information of Client).
6. CONFIDENTIALITY.
6.1 Definition. “Confidential Information” means nonpublic information, in any form or medium that is either designated as proprietary and/or confidential by the disclosing Party or, by the nature of the circumstances surrounding disclosure ought in good faith to be treated as proprietary and/or confidential, including trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer-retained information, notes, or financial information. Confidential Information shall not include any information which is or becomes generally known to the public by any means other than a breach of the obligations of the receiving Party or was previously known to the receiving Party or rightly received by the receiving Party from a third party having no obligation of confidentiality to the disclosing Party.
6.2 Confidentiality Obligations. Each Party agrees to hold the other Party’s Confidential Information in trust and confidence and will not at any time, directly or indirectly, use, disclose, furnish, divulge or permit any person or entity access to the other Party’s Confidential Information, except as expressly permitted herein. Neither Party shall use the other Party’s Confidential Information for any purpose other than in connection with this Agreement. Each Party shall take reasonable measures, consistent with those taken to protect its own confidential information, and in no event less than commercially reasonable steps, to protect the other’s Confidential Information against disclosures in violation of this Agreement. Each Party will limit the disclosure of the other Party’s Confidential Information to its employees and contractors with a need to know who (i) have been advised of the proprietary nature thereof, and (ii) have in writing either acknowledged a specific obligation to maintain the confidentiality thereof or agreed to protect and keep confidential all proprietary information to which they have access in the scope of their employment. If either Party is required to provide or disclose the other Party’s Confidential Information pursuant to a written court order, subpoena or by operation of law, such Party must first provide the other Party prior advance written notice so that the other Party may attempt to obtain a protective order limiting disclosure and use of such information, and the receiving Party shall cooperate with the disclosing Party to obtain such protective order. To the fullest extent permitted by law, the receiving Party will continue to protect as confidential and proprietary all Confidential Information of the disclosing Party disclosed in response to such order, subpoena, regulation or process of law.
6.3 Remedy. The Parties agree that a breach by the receiving Party of the obligations of confidentiality set forth in this Agreement will result in the substantial likelihood of irreparable harm and injury to the disclosing Party for which monetary damages alone would be an inadequate remedy, and which damages are difficult to measure accurately. Accordingly, without limiting any other rights or remedies, the Parties agree that the disclosing Party shall have the right, in addition to any other remedies available, to obtain immediate injunctive relief as well as other equitable relief allowed by the federal and state courts.
6.4 Survival. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their confidentiality obligations with respect to Confidential Information of the disclosing Party shall continue in effect for three (3) years from the termination or expiration of this Agreement (except that, with respect to trade secrets, for so long as such information is deemed a trade secret under applicable law).
6.5 Ownership and Return. All Confidential Information shall remain the property of the disclosing Party and shall be promptly returned or destroyed upon written request and/or the expiration or termination of this Agreement for any reason, including any and all copies, extracts, summaries and portions thereof, on whatever media rendered.
7. INSURANCE.
During the Term of this Agreement, 360 Privacy will carry and maintain insurance coverage as follows:
a. Commercial General Liability Insurance, with a combined single limit for bodily injury and property damage liability of at least $2,000,000 per occurrence and in the aggregate;
b. Worker’s Compensation as required by statute;
c. Automobile Liability (owned, non-owned and hired) with a combined single limit of at least $1,000,000;
d. Errors and omissions insurance, including first and third party cyber-liability, privacy response, hacking/virus, and data breach, with a limit of liability not less than $5,000,000
Required coverage amounts may be arranged under a single policy for the full required limits, or by a combination of the underlying policy and one or more excess or umbrella liability policies. Upon request, 360 Privacy shall provide Client with certificates of insurance evidencing such coverage.
8. TERM AND TERMINATION.
8.1 Term. This Agreement is effective as of the Effective Date and shall continue for so long that an Order is in effect (“Term”).
8.2 Termination. Either Party may terminate this Agreement (and all Term(s)) upon written notice to the other Party in the event the other Party (a) (i) ceases to actively conduct its business; (ii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy; (iii) makes a general assignment for the benefit of its creditors; or (iv) applies for the appointment of a receiver or trustee for substantially all of its property or assets or permits the appointment of any such receiver or trustee; or (b) commits a material breach of any provision of this Agreement and, if such breach is capable of cure, does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting Party or such other period as the parties may agree. In addition, 360 Privacy may terminate this Agreement for convenience at any time immediately on written notice to Client.
8.3 Effects of Termination. Upon expiration or termination of this Agreement, (i) 360 Privacy shall cease providing the Service; and (ii) Client shall promptly remit payment of unpaid Subscription Fees and Expenses due and payable for Services performed up to the effective date of termination. 360 Privacy shall have no obligation to maintain or provide Client Data and may thereafter unless legally prohibited, delete Client Data in its systems or otherwise in its possession or under its control.
9. AGREEMENT TO ARBITRATE.
9.1 Dispute Resolution. The Parties will attempt to resolve any dispute arising out of or relating to this Agreement through good faith negotiations between the Parties. If the matter is not resolved by negotiation, the Parties will resolve the dispute using the below alternative dispute resolution (ADR) procedure.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, subject to the provisions of this Agreement, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Parties agree that this Section 12(d) and the arbitrator’s authority to grant relief shall be subject to the United States Arbitration Act, 9 U.S.C. 1-16 et seq. (“USAA”), the provisions of this Agreement, and the ABA-AAA code of Ethics for Arbitrators in Commercial Disputes. The Parties further agree that: (i) the number of arbitrators shall be one; and (ii) the seat, or legal place, of arbitration shall be Nashville, Tennessee USA. The Parties expressly agree that the arbitrator shall have the authority to provide injunctive relief or equitable remedies as necessary including in the event of a breach affecting the non-breaching Party’s intellectual property or proprietary rights, Confidential Information or business reputation. In no event shall the arbitrator(s) have the authority to make any award that provides for punitive or exemplary damages.
9.2 Waiver of Class Actions. Any claims brought by Client or 360 Privacy must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither Client nor 360 Privacy will participate in a class action or class-wide arbitration for any claims covered by this Agreement. Client hereby waives any and all rights to bring any claims related to this Agreement and the DPA or Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. Client may bring claims only on its own behalf.
9.3 Opt Out. Client may opt out of this agreement to arbitrate in this Section 10. If Client chooses to do so, neither Client nor 360 Privacy can require the other to participate in an arbitration proceeding. To opt out, Client must notify 360 Privacy in writing within thirty (30) days of the date that Client first became subject to this arbitration provision. The opt out notice must state that Client does not agree to the agreement to arbitrate and must include Client’s name, address, phone number, and a clear statement that Client wants to opt out of this agreement to arbitrate. Client must sign the opt out notice for it to be effective. This procedure is the only way Client can opt out of the agreement to arbitrate. Client must use this address to opt out: 360 Privacy Inc., ATTN: Arbitration Opt-out, PO Box 3587, Brentwood, TN 37206.
10. MISCELLANEOUS.
10.1 Notices. Any notice or other communication required under this Agreement is deemed delivered (i) when delivered personally, (ii) three (3) business days after sent by certified mail, (iii) on the business day after sent by a nationally recognized courier service for next-day delivery, return receipt requested, to the address set forth below or to such other address as such Party may have furnished to the other Party in writing; or (iv) when sent by email to the email address set forth on an Order, when: (a) the recipient acknowledges having received that email (with an automatic “read receipt,” “out of office,” or other automated response not constituting such acknowledgment) or (b) the same notice is given in accordance with one or more of clauses (i) through (iii). A Party may change its notice address by giving notice to the other Party in accordance with this paragraph. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice:
(i) if to 360 Privacy, to:
360 Privacy, LLC
Attn: Legal
PO Box 3587
Brentwood, TN 37024
Phone: (423) 455-9573
Email: contracts@360privacy.io
(ii) if to Client, to:
Address provided on Enrollment Form or Order Form
10.2 Amendment; Waiver. This Agreement may be modified or amended only in a signed writing by mutual agreement between the Parties. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. Any waiver must be in writing and signed by the Party against which the waiver is sought.
10.3 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, the remaining provisions will not be affected or impaired. If a court finds that any provision of this Agreement is invalid, illegal or unenforceable, but that by limiting such provision, it would become valid, legal and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. 10.4 Governing Law. This Agreement and the rights of the Parties hereunder shall be governed by and interpreted in accordance with the laws of the state of Delaware, without regard to its conflict of laws, rules, or choice of law principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Subject in all respects to Section 10, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of Tennessee.
10.5 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
10.6 Force Majeure. If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond a Party’s reasonable control (“Force Majeure”), and such Party gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include acts of God, fire, explosion, vandalism, storm, or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages, electrical, internet, or telecommunication outages not caused by the obligated Party, or supplier failures. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. Notwithstanding the foregoing, this Section does not excuse Client’s obligation to make payments under this Agreement.
10.7 Assignment. Client may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of 360 Privacy and any attempted assignment in contravention of this provision will be null and void and of no force or effect. 360 Privacy may assign or otherwise transfer this Agreement and any rights or obligations hereunder, without Client’s consent, (i) to an affiliate of 360 Privacy or (ii) to any of the following: (1) a purchaser of all or substantially all of 360 Privacy’s voting stock or assets; (2) an entity with which 360 Privacy consolidates or merges; or (3) any entity that acquires all or substantially all of the Solution.
10.8 Independent Contractors. Client and 360 Privacy agree that 360 Privacy shall perform its duties as an independent contractor under this Agreement. No partnership, franchise, joint venture, employment or any other form of agency relationship exists or is implied between Client and 360 Privacy. Neither Party may bind the other without the other Party’s prior written consent. No officer, director, employee, affiliate or agent of either Party shall be deemed to be an employee or agent of the other Party.
10.9 Interpretation. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if both Parties drafted it in a mutual effort.
10.10 Construction. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” 10.11 Reference. Client hereby authorizes 360 Privacy to include Client’s name in a list of 360 Privacy’s clients that 360 Privacy may provide on a confidential basis to 360 Privacy’s potential clients.
10.12 Survival. The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the expiration or termination of this Agreement will survive such expiration or termination: Sections 1.5 (Use Restrictions); 2 (Fees and Payment); 3.2 (Disclaimer of Warranties); 4 (Limitation of Liability; Indemnification); 5 (Proprietary Rights); 6 (Confidentiality); 8.3 (Effects of Termination); 9 (Agreement to Arbitrate); and 10 (Miscellaneous).
10.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements between the Parties, whether written or oral, regarding such subject matter.