Terms of Service

Last modified: November 18, 2015

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS ARE A BINDING CONTRACT FOR THE USE OF GRIFFIN MAS SERVICES.

BY ACCESSING OR USING GRIFFIN MAS SERVICES YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT AND ITS AFFILIATES). IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE GRIFFIN’S SERVICES.

PRICING FOR GRIFFIN MAS SERVICES IS AVAILABLE AT http://www.griffinmas.com. HELP DOCUMENTATION OF GRIFFIN MAS SERVICES IS AVAILABLE AT  http://docs.griffinmas.com The GRIFFIN MAS PRIVACY POLICY IS AVAILABLE AT http://www.griffinmas.com/privacy/. BEFORE ACCEPTING THESE TERMS AND USING GRIFFIN MAS SERVICES, PLEASE REVIEW the Griffin MAS Privacy Policy.

THESE TERMS WERE LAST UPDATED ON NOVEMBER 18, 2015.

1. Agreement. These GRIFFIN MAS Terms of Service (these “Terms”) are made by and between the party on whose behalf they are accepted (“Customer”) and Griffin Labs Limited and are effective as of the date they are accepted by Customer. The complete subscription agreement (the “Agreement”) that grants Customer a limited subscription to use GRIFFIN’s online, support, professional, or other services (the “Services”) and Customer’s provision of data, credentials, configurations to the Services (“Customer Data”) is comprised, collectively and in order of precedence, of the documents listed below:

1.1 Any GRIFFIN online registration form or ordering document entered into by Customer and GRIFFIN (or one of GRIFFIN’s authorized agents), which incorporates these Terms (each a “ Service Order”);

1.2 These Terms;

1.3 The online documentation available at http://docs.griffinmas.com (the “Documentation”); and

2. Trial Accounts. Free trial accounts are made available for Customers to test the functionality of the Services without incurring payment obligations. Once a Customer’s use of a Trial Account expires, GRIFFIN may suspend the Trial Account unless Customer converts its Trial Account to a paid account. Additional terms and conditions presented to Customer in connection with the registration for a Trial Account shall be binding on Customer. Customers should review the Documentation thoroughly before continuing to use GRIFFIN MAS SERVICES. ALL TRIAL ACCOUNTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). GRIFFIN DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION 14) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO Customer DATA AND ANY DISRUPTION TO Customer’S OR THIRD PARTY SERVICES CONFIGURED TO WORK WITH THE TRIAL ACCOUNT. ANY CONFIGURATIONS OR Customer DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR Customer, MAY BE PERMANENTLY LOST IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. GRIFFIN’S INDEMNITY OBLIGATIONS UNDER SECTION 17 DO NOT APPLY TO TRIAL ACCOUNTS.

3. GRIFFIN’s Obligations.

3.1 Services. GRIFFIN will make the Services available to Customer as specified in Service Orders.

3.2 Documentation. GRIFFIN will make available Documentation that describes, for each of the Services: (a) the features, functionality, and performance of the Services; (b) the Services’ administrative, physical, and technical safeguards for protection of the security and integrity of the Services and Customer Data (the “Security Measures”); (c) certifications and compliance programs applicable to the Services; and (d) any terms provided in connection with technology or third party services incorporated into the Services.

3.3 Personnel and Performance. GRIFFIN will be strictly responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. GRIFFIN enters into the Agreement on behalf of its Affiliates. An “Affiliate” of a party is any entity (a) that the party Controls; (b) that the party is Controlled by; or (c) with which the party is under common Control, where “Control” means direct or indirect control (including by ownership) of fifty percent (50%) of an entity’s voting interests.

3.4 Protection of Customer Data. GRIFFIN will maintain the Security Measures only as described in the Documentation. GRIFFIN will store, process, transmit and disclose Customer Data only according to the Documentation. The Services, independent of Customer Data, will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses (“Malicious Code”).

3.5 Compliance with Laws. GRIFFIN shall comply with all laws and governmental regulations applicable to the Services.

3.6 Privacy. GRIFFIN will collect, use, and retain information about Customer Data and the Customer’s use of the Services according to the Documentation. GRIFFIN will comply with its Privacy Policy available at http://www.griffinmas.com/privacy/ (the “Privacy Policy”) in the collection, use, and storage of information about the Customer and its personnel.

4. Customer’s Obligations.

4.1 Customer Data and Customer Offerings. Customer shall only provide or enable the provision of Customer Data to its end users and use the Services according to, in order of precedence, the Service Orders, these Terms, the Documentation. Customer shall integrate the Services with its own offerings that provide substantial additional functionality to its end users (“Customer Offerings”).

4.2 Personnel, End Users and Performance. Customer shall be strictly responsible for the performance of its personnel (including employees and contractors) and end users and their use of the Services and Customer data in compliance with the Agreement, including use that Customer could not have prevented. Customer enters into the Agreement on behalf of its Affiliates.

4.3 Non-GRIFFIN Services. Customer may choose to use services not provided by GRIFFIN (“Non-GRIFFIN Services”) with the Services and in doing so grants GRIFFIN permission to interoperate with the Non-GRIFFIN services as directed by Customer’s use of the Non-GRIFFIN Services. Customer’s acquisition of Non-GRIFFIN Services, and any exchange of data between Customer and any provider of Non-GRIFFIN Services, is governed solely by the terms of the relationship between Customer and the provider of the Non-GRIFFIN Services. Customer bears (and releases GRIFFIN from) all risk and liability associated with the use of Non-GRIFFIN Services, including disclosure, modification or deletion of Customer Data. Unless specified in a Service Order: (a) GRIFFIN does not warrant or support Non-GRIFFIN Services and (b) GRIFFIN shall have no liability for, and Customer is not relieved of any obligations or entitled to any refund, credit, or other compensation due to, any unavailability of the Non-GRIFFIN Services or any loss of ability for GRIFFIN to interoperate with the Non-GRIFFIN Services.

4.4 Responsibilities. Customer shall be responsible for (a) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data; (b) using commercially reasonable efforts to prevent unauthorized access to or use of the Services; (c) promptly notifying GRIFFIN of any unauthorized access or use of the Services; (d) publicly displaying its notice and takedown process under Title II of the Digital Millennium Copyright Act of 1998 (Section 512 of the U.S. Copyright Act) and any other intellectual property safe harbor law or regulation applicable to Customer (each a “Safe Harbor Statute”); (e) complying with any notices received under a Safe Harbor Statute relating to Customer Data or Customer’s use of the Services and (f) providing GRIFFIN with an email address (an “Abuse Contact”) that GRIFFIN can provide to third parties that inquire about Customer Data or Customer’s use of the Services.

4.5 Restrictions. Customer shall not (a) use the Services to store, transmit or display Customer Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (b) make the Services available to, or use the Services for the benefit of, anyone other than Customer’s own personnel and the end users of Customer Offerings; (c) use the Services to store, transmit or display Malicious Code; (d) interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (e) attempt to gain unauthorized access to any of GRIFFIN’s systems or networks; (f) permit direct or indirect access to or use the Services in a way that circumvents a usage limit set forth in the Agreement; (g) sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with Customer Offerings; (h) copy the Services or any part, feature, function, or user interface thereof; (i) access the Services or use the Documentation to develop a competitive product or service; or (j) reverse engineer the Services (to the extent a restriction on reverse engineering is permitted by law).

5. Term and Termination.

6.1 Term. These Terms are effective during the Term of any Service Order that incorporates them and remain in effect until Customer ceases use of the Services. The term of a Service Order shall be monthly, unless the Service Order specifies a longer term, such as in connection with a minimum commitment. Service Orders shall renew for successive terms, unless Customer gives GRIFFIN at least one (1) month’s notice of termination. If Customer continues to use the Services following termination of all Service Orders, Customer will be liable for usage charges at GRIFFIN’s then current list prices.

6.2 Termination for Cause. In addition to GRIFFIN’s right to terminate the entire Agreement under Section 3 (Acceptable Use), Customer or GRIFFIN may terminate the entire Agreement for cause upon 30 days written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period

6.3 Survival. Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including the Customer Obligations, Confidentiality, Proprietary Rights, Fees and Payment, Indemnification, Limitation of Liability, Term, and Agreement Sections.

6. Beta Services. From time to time, GRIFFIN may offer services identified as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). Customer may accept or decline Beta Services. Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Customer for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available. GRIFFIN may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. GRIFFIN DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO Customer DATA. ANY CONFIGURATIONS OR Customer DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR Customer, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.

7. Fees and Payment.

7.1 Fees. Customer will pay all fees specified in Service Orders and provide accurate and updated billing contact information. Minimum commitments in Service Orders are (a) based on Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for actual usage are not refundable. Customer’s payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement.

7.2 Payments By Credit Card. If Customer is paying for Services by credit card, Customer will provide GRIFFIN with valid credit card information and promptly notify GRIFFIN of any changes necessary to charge the credit card. The provision of credit card information to GRIFFIN authorizes GRIFFIN to charge the credit card for all Services specified in a Service Order, and any renewal subscription terms as set forth in Section 6.1 (Term), either (a) monthly or (b) according to the billing frequency stated in the Service Order.

7.3 Invoicing Terms. If the Service Order specifies that payment will occur by a method other than a credit card, Customer will provide a purchase order number in the applicable amount (or reasonable alternative proof of Customer’s ability to pay the fees specified in a Service Order), and promptly notify GRIFFIN of any changes necessary for payment of an invoice. GRIFFIN will invoice Customer either monthly or according to the Service Order. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 15 days from the invoice date. If any invoiced amount is not received by GRIFFIN by the due date, then without limiting GRIFFIN’s rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) GRIFFIN may condition future subscription renewals and Service Orders on shorter payment terms.

7.4 Suspension of Service and Acceleration. If any amount owing by Customer is 30 or more days overdue (or 10 or more days overdue in the case of invoices to be paid by credit card), GRIFFIN may, without limiting any rights and remedies, accelerate Customer’s unpaid fee obligations to become immediately due and payable, and suspend the provision of Services to Customer until the overdue amounts are paid in full. GRIFFIN will give Customer at least 10 days prior notice that its account is overdue, in accordance with Section 19 (Manner of Giving Notice), before suspending services to Customer.

7.5 Payment Disputes. GRIFFIN will not exercise any rights to suspend Services, accelerate payments, impose late charges or change payment terms under Section 8.4 (Invoicing Terms) for so long as Customer is: (a) disputing the charges in good faith and (b) cooperating diligently to resolve the dispute.

7.6 Refund or Payment upon Termination. If Customer terminates the Agreement in accordance with Section 6.2 (Termination for Cause), GRIFFIN will refund any prepaid fees covering the remainder of the term of all Service Orders after the effective date of termination. If the Agreement is terminated by GRIFFIN in accordance with Section 6.2 (Termination for Cause), Customer will pay any unpaid fees covering the remainder of the term of all Service Orders. In no event will termination relieve Customer of its obligation to pay any fees payable for the period prior to the effective date of the termination for cause.

7.7 Taxes. Fees for Services do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its Service Orders. If GRIFFIN is obligated by law to pay or collect Taxes for which Customer is responsible, GRIFFIN will invoice Customer and Customer will pay that amount unless Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. GRIFFIN is solely responsible for taxes assessable against its income, property, and employees.

9. Confidentiality.

9.1 Confidential Information. “Confidential Information” means all information about the relationship created by the Agreement disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Confidential Information of each party includes the terms and conditions of the Agreement and all Service Orders, including pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Recipient; (b) was known to the Recipient prior to disclosure by Discloser, as proven by records of Recipient; (c) is disclosed to Recipient by a third party who did not directly or indirectly obtain the information from Discloser subject to any confidentiality obligation; or (d) is at any time independently developed by Recipient as proven by records of Recipient.

9.2 Protection of Confidential Information. Except as provided in Section 9.3 (Compelled Disclosure) Recipient shall not disclose or otherwise make available any Confidential Information of the Discloser to anyone except those of its employees, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information.

9.3 Compelled Disclosure. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, then to the extent legally permitted, Recipient shall provide the Discloser with prior notice of the compelled disclosure and reasonable assistance, at Discloser’s cost, if the Discloser wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required, and shall be subject to confidentiality protections to the extent practicable. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.

10. Licenses and Proprietary Rights.

10.1 Customer Data. Customer grants GRIFFIN a worldwide, nonexclusive, revocable, and limited license during term of Customer’s use of the Services to store, copy, transmit, and display Customer Data, and to interoperate with any Non-GRIFFIN Services as necessary in order for GRIFFIN to provide the Services in accordance with the Agreement. Subject to this limited license, GRIFFIN acquires no right, title, or interest from Customer under the Agreement in or to Customer Data.

10.2 Feedback. Customer grants to GRIFFIN worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer.

10.3 Deliverables. GRIFFIN hereby grants Customer a worldwide, perpetual, non- exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by GRIFFIN for Customer and delivered by GRIFFIN to Customer in connection with support or professional services (“Deliverables”). Subject to Customer’s ownership of its proprietary and Confidential Information disclosed to GRIFFIN under Section 9 (Confidentiality) GRIFFIN shall retain all ownership rights to the Deliverables.

10.4 Proprietary Rights. The Services and the Documentation are the proprietary information of GRIFFIN. Subject to the limited rights expressly granted in the Agreement, GRIFFIN and GRIFFIN’s licensors reserve all right, title, and interest in and to the Services and the Documentation, including all related intellectual property rights. No rights are granted to Customer except as expressly set forth in the Agreement. No rights are granted to GRIFFIN except as expressly set forth in the Agreement.

11. Government Rights. The Services may include access to software. In such case, such software is commercial computer software. Accordingly, if Customer is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Customer is a government agency that has a need for rights not granted under the Agreement, it must negotiate with GRIFFIN to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.

12. Export Compliance. The Services and Documentation may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.

13. Anti-corruption. Customer has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any GRIFFIN personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Customer becomes aware of any violation of the above restriction, Customer will promptly notify GRIFFIN’s Legal Department at support@griffinmas.com.

14. Limitation of Liability. A PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY Customer HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY Customer HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT Customer’S PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT) OR THE Customer’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 17 (INDEMNIFICATION).

15. Exclusion of Consequential and Related Damages. IN NO EVENT WILL A PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

16. Warranties.

16.1 Services Warranty. In addition to its obligations under the Agreement, GRIFFIN warrants that during the term of each Service Order that: (a) the Services will perform materially as set forth in the Documentation, (b) the features, functionality, performance, and overall effectiveness of the Security Measures will not be materially decreased, and (c) Customer’s obligations will not be materially increased as a result of an update to the Documentation, the AUP or the Privacy Policy. Without limiting GRIFFIN’s obligations pursuant to Section 3, Customer’s exclusive remedies for a breach of the warranty in this Section 16.1 (Services Warranty) shall be to exercise the express rights described in Sections 6.2 (Termination For Cause) and 8.7 (Refund or Payment upon Termination).

16.2 Support and Professional Services Warranty. The support and professional services specified in the applicable Service Order will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Customer’s exclusive remedies for breach of the warranty in this Section 16.2 shall be either (a) re-performance of the Support or Professional Services by GRIFFIN; (b) to claim the credits set forth in the applicable service level agreement; or (c) to exercise the express rights described in Sections 6.2 (Termination For Cause) and 8.7 (Refund or Payment upon Termination).

16.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 16.1, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

17. Indemnification.

17.1 Indemnification by GRIFFIN. GRIFFIN will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Services in accordance with the Agreement infringes or misappropriates the third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (a) promptly gives GRIFFIN written notice of the Claim Against Customer; (b) gives GRIFFIN sole control of the defense and settlement of the Claim Against Customer (except that GRIFFIN may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability related to the Claim Against Customer); and (c) gives GRIFFIN all reasonable assistance, at GRIFFIN’s expense. If GRIFFIN receives information about an infringement or misappropriation claim related to the Services, GRIFFIN may in its discretion and at no cost to Customer (x) modify the Service so that it no longer infringes or misappropriates, without breaching GRIFFIN’s obligations under Section 3 (GRIFFIN’s Obligations); (y) obtain a license for Customer’s continued use of that Service in accordance with the Agreement; or (z) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer Data, Customer’s use of Beta Services, a Non-GRIFFIN Application or Customer’s breach of the Agreement.

17.2 Indemnification by Customer. Customer will defend GRIFFIN against any claim, demand, suit or proceeding made or brought against GRIFFIN by a third party alleging that Customer Data, or Customer’s use of the Services in breach of the Agreement, infringes or misappropriates the third party’s intellectual property rights, violates applicable law or has caused harm to the third party (a “Claim Against GRIFFIN”), and will indemnify GRIFFIN from any damages, attorney fees and costs finally awarded against GRIFFIN as a result of, or for any amounts paid by GRIFFIN under a court-approved settlement of, a Claim Against GRIFFIN, provided GRIFFIN (a) promptly gives Customer written notice of the Claim Against GRIFFIN; (b) gives Customer sole control of the defense and settlement of the Claim Against GRIFFIN (except that Customer may not settle any Claim Against GRIFFIN unless it unconditionally releases GRIFFIN of all liability related to the Claim Against GRIFFIN); and (c) give Customer all reasonable assistance, at Customer’s expense.

17.3 Additional Indemnities. For purposes of this Section 17, (a) a Claim Against GRIFFIN shall include a claim against GRIFFIN, GRIFFIN’s Affiliates, and GRIFFIN’s or its Affiliates’ officers, directors, and employees and (b) a Claim Against Customer shall include a claim against Customer, Customer’s Affiliates, and Customer’s or its Affiliates’ officers, directors, and employees.

17.4 Exclusive Remedy. This Section 17 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 17.

18. Assignment.

18.1 Either party may assign the Agreement in its entirety, without the other party’s consent (a) to its Affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, unless the Customer is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of GRIFFIN, in which case GRIFFIN may, but is not required to, terminate the Agreement upon written notice, and in the event of such a termination, GRIFFIN will refund to Customer any prepaid fees covering the remainder of the initial term of all Service Orders.

18.2 Except as permitted in Section 18.1, neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld).

18.3 The Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

19. Manner of Giving Notice.

19.1 Updates. Notices of updates to the Terms of Services and Privacy Policy will be emailed to all Customers 30 days prior to such updates becoming effective. Updates to the AUP and the Privacy Policy will be effective thirty (30) days after posting.

19.2 Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the first business day after sending by email (provided email shall not be sufficient for notices an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer, or as set forth on the Cover Page to the Agreement. Notices should be addressed to support@griffinmas.com.

20. Governing Law and Jurisdiction. The governing law of the Isle of Man. will apply in any lawsuit arising out of or in connection with the Agreement and the courts located in Isle of Man have exclusive jurisdiction over any such lawsuit.

21. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

22. Third-Party Beneficiaries. Customer acknowledges that GRIFFIN’s licensors and technology providers have required GRIFFIN to agree to certain provisions with Customer, including Sections 1 (Customer Obligations), 10 (Licenses and Proprietary Rights), 14 (Limitation on Liability), 15 (Exclusion of Consequential and Related Damages) and 17 (Indemnification). There are no other third-party beneficiaries under the Agreement.

23. Entire Agreement. The Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. GRIFFIN and Customer each represent that it has validly entered into the Agreement and has the legal power to do so. Any term or condition stated in a Customer purchase order or other Customer order documents (excluding Service Orders) is void. No modification, amendment, or waiver of any provision of the Agreement will be effective unless it exists in writing and is signed by the party against whom the modification, amendment, or waiver is to be asserted. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect.

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