This Managed Service Provider Agreement (this “Agreement”) is by and between Telivy, Inc., a Delaware corporation (“Telivy”) and You (“Partner”) and is effective as and when you starting using our platform.
1.1. Appointment. Subject to the terms and conditions set forth herein, Telivy hereby appoints Partner, and Partner hereby accepts such appointment, as a nonexclusive managed service provider for the Telivy Services. In connection with such appointment, subject to the terms and conditions set forth herein (including any usage limitations set forth in a corresponding Order Form), Telivy grants to Partner a limited, non-exclusive, non-transferable right to (i) access and use the Telivy Services solely to provide services to End Customers, and (ii) grant End Customers the right to access and use the Telivy Services for their own internal business purposes only.
1.2. “Telivy Services” shall mean cyber security offering that may assist with assessing, quantifying, and transferring risk.
1.3. “End Customers” shall mean a business that has entered into an agreement with Partner to obtain the Telivy Services from Partner for such customer’s internal business purposes only. Partner shall be responsible for all use of the Telivy Services by it, its End Customers, and their respective employees, contractors, representatives and agents.
1.4. Provision of Telivy Services. Telivy will make the Telivy Services available to Partner pursuant to this Agreement. Any use of the Telivy Services in breach of this Agreement, the license restrictions set forth in Section 1.8, or any other documentation made available by Telivy, by Partner or End Customers that in Telivy’s judgment threatens the security, integrity or availability of the Telivy Services may result in Telivy’s immediate suspension of the Telivy Services; however, Telivy will use commercially reasonable efforts under the circumstances to provide Partner with notice and an opportunity to remedy such violation or threat prior to such suspension.
1.5. Support. Telivy shall use commercially reasonable efforts to provide customer support directly to Partner only. Partner shall be directly responsible for handling any customer support from End Customers.
1.6. Reserved Rights. Telivy reserves the right to: (a) license end users directly; (b) appoint other distributors, resellers or managed service providers for the Telivy Services; and (c) enter into arrangements or agreements with third parties in connection with the Telivy Services. Telivy will under no circumstances reach out to your End Customers unless instructed to do so.
1.7. Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 1.7, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement
1.8. Restrictions*.* Partner represents, warrants and covenants that it and its End Customers will not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Telivy Services, or any part thereof, or make it available to anyone other than such customers and their authorized users; (ii) send or store in the Telivy Services any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store infringing or unlawful material in connection with the Telivy
Services; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Telivy Services; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Telivy Services or the data contained therein; (vi) modify, copy or create derivative works based on the Telivy Services, or any portion thereof; (vii) access the Telivy Services for the purpose of building a competitive product or service or copying its features or user interface; (viii) delete, alter, add to or fail to reproduce in and on the Telivy Services the name of Telivy and any copyright or other notices appearing in or on the Telivy Services or (ix) use the Telivy Services in violation of applicable laws and regulations or otherwise outside the scope expressly permitted under this Agreement.
1.9. Usage Data. Telivy owns the statistical usage data derived from the operation of the Telivy Services, including data regarding web applications utilized in connection with the Telivy Services by Partner and its End Customers, configurations, log data, and the performance results for the Telivy Services (“Usage Data”). Telivy shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Telivy Services and related systems and technologies (including, without limitation, information concerning Usage Data and data derived therefrom), and Telivy will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Telivy Services and for other development, diagnostic and corrective purposes in connection with the Telivy Services and other Telivy offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
2.1. Fee. Partner will pay Telivy the then applicable fees described in all applicable Order Forms in accordance with the terms therein (the “Fees”). Telivy reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term, or then current renewal term, upon thirty (30) days prior notice to Partner (which may be sent by email). If Partner believes that Telivy has billed Partner incorrectly, Partner must contact Telivy no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Telivy’s customer support department.
2.2. Payment Terms. All payments under this Agreement and any applicable Order Forms will be due within thirty (30) days after date of Telivy’s invoice. Partner will be solely responsible for pricing, billing and collecting from End Customers. Payments due to Telivy hereunder shall not depend on Partner’s receipt of payment from End Customers. Telivy will have the right to charge interest on all sums not paid when due at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Partner pays all amounts due.
2.3. Taxes. Partner’s purchase price does not include any taxes that may be applicable to the sale of subscriptions to the Telivy Services. When Telivy has the legal obligation to collect such taxes, the appropriate amount shall be added to Partner’s invoice and paid by Partner. Prices do not include any national, regional, and local excise, sales, use, withholding or similar taxes. If Partner is required to pay any withholding tax, charge or levy in respect of any payments due to Telivy hereunder, Partner agrees to gross up payments actually made such that Telivy shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
2.4. Books and Records. During the term of this Agreement and for a period of three (3) years thereafter, Partner agrees to keep and maintain clear and accurate books and records relating to the activities hereunder. Telivy shall have the right (upon no less than ten (10) business days prior notice) to itself or through an independent auditor review and audit the books of Partner to determine compliance with this Agreement. Telivy shall pay the cost of such investigation, except in the event that such auditor determines that the amounts due to Telivy hereunder for the period investigated have been underpaid by at least five percent (5%) or more, in which case the entire cost of the investigation shall be borne by Partner. Partner shall immediately pay to Telivy any amounts discovered to be owed as a result of the investigation.
3.1. Notification. Partner will immediately notify Telivy in writing if it becomes aware of any facts indicating that the security of the Telivy Services has been or is likely to be violated, or that the Telivy Services is or may be infringing the intellectual property rights of a third party. Partner will also immediately notify Telivy in writing of any legal action arising from Partner’s provision of the Telivy Services.
3.2. Marketing and Promotion. Partner will use commercially reasonable efforts to market and promote the Telivy Services, and will market and promote the Telivy Services solely in accordance with the Agreement. Partner agrees to adhere to all written Partner requirements provided by TelivyLayer, and in particular agrees to (i) conduct its business in a professional manner in accordance with computer services industry standards, and (ii) not disparage, directly or indirectly, Telivy or the Telivy Services.