XTIUM MDR: Terms and Conditions

THESE TERMS (“TERMS”) GOVERN THE USE OF XTIUM MDR THAT CUSTOMER IS PROCURING FROM XTIUM AND/OR ITS AFFILIATES OR SUBSIDIARIES (“XTIUM”), AS MORE FULLY SET FORTH IN THE APPLICABLE SERVICE DESCRIPTION RELATED TO THE XTIUM MDR.

The parties will mutually execute quotes or orders forms (collectively, “Orders”) for XTIUM MDR. The Order is non-cancellable, non-terminable and non-refundable. Orders may be submitted in writing or electronically. When accepted in writing or electronically by XTIUM at its principal offices, Orders are incorporated herein and binding upon the Parties. Each Order shall be a discrete engagement and shall begin and end in accordance with its terms. XTIUM may suspend performance and may terminate all Orders if Customer is in default hereunder or under any Order. If Customer issues a purchase order in connection with an Order, only the quantity and price of the Services(s) are accepted, no other terms in the purchase order shall apply. To the extent that XTIUM MDR included third party manufactured related services or offerings (“Third-Party Offerings”), then Customer shall be provided such Third-Party Offerings pursuant to the third-party manufacturers’ published terms and conditions (“Third Party EULA”) which are set forth below. Customer acknowledges that XTIUM MDR may be provided in whole or in part by XTIUM and/or its affiliates or subsidiaries.

XTIUM shall be paid at the billable rates set forth in the Order. XTIUM shall invoice as set forth in the Order, and if no billing schedule is set forth in an Order, then on a monthly basis. Terms shall be net 30 days. A one and one-half percent (1-1/2%) per month carrying charge may be applied to any balance unpaid for more than thirty (30) days. If payment has not been received as set forth herein, XTIUM reserves the right, in addition to any other rights it may have to suspend the XTIUM MDR until such payment is made in full. Prices do not include taxes. Customer shall pay all sales, use and other taxes imposed on the sale or furnishing of XTIUM MDR. To claim an exemption from sales, use or other taxes, Customer shall deliver to XTIUM either a capital improvement certificate or other tax exemption certificate prior to the finalization of the pricing and the execution of the Order or the applicable Order. Customer agrees to pay XTIUM’s costs and expenses, including reasonable attorney’s fees, incurred in enforcing these Terms.

Either party may terminate the Order upon ten (10) days’ written notice for the other party’s material breach of the Order, these Terms, or any Third-Party EULA. In addition, XTIUM may discontinue provision of the Third-Party Offerings if and to the extent discontinued by such third-party provider. Third party providers (and not XTIUM) are responsible for provision of any end-of-life notices. XTIUM will use reasonable efforts to provide customer with replacement Third Party Offerings but shall not be liable if unable to do so (and XTIUM shall have the right in such event to terminate the applicable Order). Customer may be required to accept new terms in connection with any replacement Third Party Offerings.

Upon any termination for any reason of any agreements in connection with the Third-Party Offerings, (i) no refund of any prepaid or due and payable fees, or other agreed upon amounts, shall be due in any amount to customer in connection with such termination and (ii) any fees or other amounts owed by customer to XTIUM will become immediately due and payable.

EXCEPT AS SET FORTH HEREIN OR EXCEPT FOR ANY LIMITED EXPRESS WARRANTIES MADE BY A THIRD PARTY PROVIDER TO CUSTOMER IN A THIRD PARTY EULA OR OTHER WRITTEN AGREEMENT, NEITHER XTIUM NOR THIRD PARTY PROVIDER MAKE ANY WARRANTIES RELATING TO THE XTIUM MDR OR THIRD PARTY OFFERINGS, RESPECTIVELY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, WITH THE XTIUM MDR AND THIRD PARTY OFFERINGS OTHERWISE PROVIDED “AS-IS”. CUSTOMER ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT NEITHER XTIUM NOR THIRD PARTY PROVIDER GUARANTEE OR WARRANT THAT USE OF THE XTIUM MDR OR THIRD-PARTY OFFERINGS WILL FIND, LOCATE OR DISCOVER ALL SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND WILL NOT HOLD XTIUM OR THIRD-PARTY PROVIDER RESPONSIBLE THEREFOR.

NEITHER THE XTIUM MDR NOR THE THIRD-PARTY OFFERINGS ARE FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE XTIUM MDR NOR THE THIRD-PARTY OFFERINGS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE. XTIUM EXPRESSLY DOES NOT WARRANT THAT THE XTIUM MDR OR THE THIRD-PARTY OFFERINGS WILL MEET CUSTOMER’S SUBJECTIVE REQUIREMENTS. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREMEENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER CUSTOMER HAS ACCEPTED ANY SERVICES UNDER THESE TERMS. FOR ANY WARRANTY CLAIMS RELATED TO THIRD-PARTY OFFERINGS, CUSTOMER WILL LOOK SOLELY TO THE APPLICABLE THIRD-PARTY EULA.

Neither XTIUM nor Third Party Provider nor their employees, agents or contractors shall be liable for any delay or failure to perform for any cause beyond their reasonable control.

XTIUM HAS NO LIABILITY ARISING UNDER OR RELATED TO THESE TERMS OR OTHERWISE FOR LOST PROFITS, LOST ANTICIPATED COST SAVINGS OR LOST OR DAMAGED DATA AND OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, EVEN IF XTIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. XTIUM’S TOTAL LIABILITY TO CUSTOMER ARISING UNDER OR RELATED TO THESE TERMS IS LIMITED TO THE SPECIFIC AMOUNTS THAT CUSTOMER PAYS TO XTIUM FOR THE XTIUM MDR GIVING RISE TO THE LIABILITY AT ISSUE WITHIN THE 12 MONTH PERIOD PRIOR TO THE EVENT WHICH GAVE RISE TO THE CLAIM. THE PARTIES RECOGNIZE THAT ALTHOUGH THE GOAL OF TECHNOLOGY-BASED SECURITY CONSULTING, SYSTEMS AND SOFTWARE IS TO PROVIDE AN ENVIRONMENT THAT IS RESISTANT TO SECURITY BREACHES, NO TECHNOLOGY CAN PROVIDE AN ENVIRONMENT THAT IS COMPLETELY SECURE OR ENTIRELY RESISTANT TO INTRUSIONS OR BREACHES. ACCORDINGLY, XTIUM MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, THAT THE HARDWARE, SOFTWARE, CUSTOMER’S SYSTEMS OR ENVIRONMENT WILL BE FREE FROM SECURITY VULNERABILITIES OR IMMUNE FROM ATTACKS, INTRUSIONS OR BREACHES.

Customer owns all data and information that it provides to XTIUM to provide the XTIUM MDR. XTIUM owns and retains all right, title and interest in all XTIUM MDR as well as the results of the XTIUM MDR, unless expressly provided otherwise in an Order. XTIUM reserves all rights not expressly granted.

In the course of providing the XTIUM MDR, a party may disclose (“Discloser”) to the other party (“Recipient”) non-public business or technical information (“Confidential Information”), which includes without limitation any software, service, technical documentation, pricing information, customer and prospect lists, market projections and analysis, technology roadmaps, data regarding its business practices, the Service Description, these Terms, and intellectual property of Discloser. Recipient agrees that all Confidential Information of Discloser may not be disclosed to any third-party (other than its contractors who have a confidentiality contract with Recipient with terms no less protective than those contained within these Terms) and may not be used except for purposes of performing under these Terms or otherwise for the benefit of Discloser. Recipient must safeguard Discloser’s Confidential Information with at least the same degree of care that it uses to safeguard its own confidential information, but in no event less than reasonable care. Confidential Information excludes information, which is or are: (a) in the public domain without a violation of these Terms; (b) known by Recipient prior to its receipt without any obligation regarding confidentiality; (c) disclosed to Recipient by another person not in violation of an obligation; or (d) independently developed without use of the confidential information of Discloser. If any Confidential Information is required to be disclosed by law, the Recipient must make reasonable efforts to notify the Discloser of the legal proceeding in advance.

XTIUM may audit customer’s actual usage of XTIUM MDR at the end of each billing period (including additional licenses provisioned, new customers added, and increased number of devices protected). If customer’s actual usage exceeds the committed amount, XTIUM shall bill customer for the additional usage in the form of a true-up, and the increased quantity shall apply through the remainder of the applicable term. No reduction in fees or refunds shall apply during an annual term if the quantity of XTIUM MDR used decreases for any reason.

XTIUM MDR shall be interpreted and construed in accordance with the laws of the State of New York, without regard to any conflict of law principles that might apply the laws of any other jurisdiction. The parties consent to the exclusive jurisdiction of the courts of the State of New York and of the United States located in New York County, New York and expressly waive trial by jury. The terms supersede all prior or contemporaneous agreements and understandings between the parties, whether oral or written, and shall govern all Orders in which XTIUM MDR is sold. The Order may only be amended or modified in a signed writing executed by both parties. XTIUM and/or the Third-Party Provider may publicly refer to Customer as a client and use Customer’s name, trademark, and logo as part of its Customer lists and marketing. Customer hereby consents to XTIUM’s and/or Third-Party Provider communicating with Customer for marketing and business opportunity purposes. Notices and process may be given by hand delivery, express, certified, or registered mail, in each case with a return receipt requested, or by next business day courier, and shall be addressed to the applicable party at the address provided within the Order. A party may change its address for this purpose by a notice. The Order pursuant to which XTIUM MDR is purchased may be executed, issued, and accepted electronically (via fax, email, or other authenticated digital or electronic means) and shall be effective when transmitted bearing a copy of a manual, digital or electronic signature.

Applicable Third Party EULAs:

http://static.tenable.com/prod_docs/tenable_slas.html
https://www.crowdstrike.com/terms-conditions
https://azure.microsoft.com/en-us/support/legal/subscription-agreement
https://expel.com/terms-of-use/