Pureport Master Service Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. BY COMPLETING THE ORDER FORM OR USING A PUREPORT SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE POLICIES.  THE AGREEMENT IS EFFECTIVE AS OF THE DATE THE CUSTOMER CLICKS TO ACCEPT THE AGREEMENT.  IT WILL REMAIN IN EFFECT FOR A MINIMUM TERM OF ONE YEAR, AND RENEWING AUTOMATICALLY FOR ADDITIONAL ONE YEAR TERMS THEREAFTER SO LONG AS ONE OR MORE ORDERS ARE IN EFFECT.

  1. Definitions

“Agreement” means the contract formed between You and Us when You use a Service or place an Order, the terms and conditions of which are comprised of (in order of precedence): the Pureport Master Service Agreement (“MSA”), the SLA for the Service, the Acceptable Use Policy and terms of any Order.

“Content” means data and information made available, displayed or transmitted in connection with Your use of the Service, whether originating from You, your users or others.

“Aggregated Data” means data and information including but not limited to, network traffic, server log files, or other attributes which have been calculated or derived from the use of Our Service.

“Order” means the agreement that identifies the Products and/or Services that Customer requests Pureport to provide.

“Policies” means collectively the current versions on the Site of the: Acceptable Use Policy (“AUP”) and Privacy Policy.

“Service(s)” means features, functionality and other services offered by Pureport as part of its product offering.

“Site” means www.pureport.com, its subsidiaries websites and all others affiliated with or linked to (regardless of URL other identifiers) any of them.

“SLA” means the current version on the Site of the Service Level Agreement for the corresponding Service.

“Pureport Console” means the location on the Site where You may access and manage your Orders and account information.

“Marks” means all registered and common law trademarks, trademark registrations, service marks, trade names, copyrights, licenses, designs, logos, marketing and promotion materials and all intellectual property rights relating thereto and any similar rights owned, used by or licensed to a party, and any applications currently pending.

“We,” “Us” or “Our” means Pureport, Inc., a Delaware corporation or its subsidiaries with whom You are contracting.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity named in the Order.

  1. Governing Documents and Obligations

2.1 Governing Documents.

Each Order placement shall constitute a separate and independent Agreement. Use of a Service indicates You agree to abide by the Policies. Each Order shall be subject to the provisions of the documents governing it in effect at the time of Order placement or use of Service, whichever occurs first, including without limitation the MSA, the SLA (if any) and Policies. For subsequent Orders, any earlier placed Orders still in effect shall become governed by the version of the governing documents prevailing at the time that subsequent Order is made.

2.2 Account Security.

You are solely responsible for the accuracy, quality, integrity, adequate security, protection and backup of Your Content and technology. We disclaim all responsibility or liability for any claims or losses related to Your Content or technology caused directly or indirectly by You or others. You are responsible for all Content posted and activity that occurs under Your account whether by authorized or unauthorized users.

2.3 Support and Availability.

We will provide support for the Service, including providing bug fixes and updates, in accordance with the corresponding SLA (if any).

2.4 Publicity and Trademarks.

You hereby permit Us to identify You as a customer of Pureport and to display Your logo in connection with identifying You as a customer of Pureport.  If We desire, within ninety (90) days of the effective date of this Agreement, We will request You to participate in a joint press release with Us announcing Your use of Our Services.  The press release shall be subject to the approval of each party, which approval shall not be unreasonably withheld or delayed.  All use of a party’s Marks shall be subject to such party’s logo and trademark usage guide.

2.5 Third Parties
Without written approval from Pureport, You must not enable third parties to rebrand or otherwise use Pureport’s services to provision customer access to the Pureport Platform (commonly referred to as “white labeling”). This written approval from Pureport to white label must be specific to each individual third party legal entity.

  1. Charges, Refunds and Taxes

3.1 Charges.

You authorize Us to charge Your payment method on a recurring basis for successive Terms of equal length, until the Order is terminated by You or Us. The amount charged may vary for reasons including but not limited to usage-based metering, promotional offers, overages and/or changes to Your plan. You authorize Pureport to charge your payment method for such varying amounts, which may be billed in one or more charges. Pureport reserves the right to adjust pricing for a Service or any components thereof in any manner and at any time as determined in Our sole and absolute discretion. Unless otherwise indicated on the Order, all payments are due upon receipt. You are responsible for maintaining complete and accurate billing and contact information in the Pureport Console. Charges may be disputed by providing Us with notice and supporting documentation within thirty (30) days of the payment due date. If a charge is not disputed in accordance with this Section 3.2, payment is due in full and You waive all rights to dispute the charge.

3.2 Overdue Charges.

If any charges are not received from You by the due date, then at Our discretion such charges may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

3.3 Credits and Refunds.

Payments are nonrefundable. Except as specifically provided for in an applicable SLA, Pureport reserves the right to provide credits or discounts in Our sole and absolute discretion. The provision of credits or discounts in one instance does not entitle You nor obligate Us with respect to future credits or discounts. Credits will be applied to future invoices and are not eligible for refunds, are not transferable between Orders or Services. Unused credits expire if not used prior to the termination of an Order.

3.4 Changes (Upgrades/Downgrades).

You may make changes to Your Order at any time during the Term through the Pureport Console or API. You authorize Us to charge Your payment method for additional or increased charges resulting from a change or upgrade. Credits (only) will be given if applicable for the remainder of a billing period where you have paid in advance and You downgrade your Service level during that billing period. No refunds or credits will be given if You cancel or downgrade a free Service.

3.5 Taxes.

Charges 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”). You are responsible for paying all Taxes associated with the purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, We are solely responsible for taxes assessable based on Our income, property and employees.

3.6 Rate Modifications

At any time after the Initial Term, Pureport shall have the right to increase its rates for the applicable Service upon no less than sixty (60) days advance written notice to Customer, but no more than once per 12 month period and in no greater amount than Pureport’s then-current published rates.

  1. Term and Termination

4.1 Term

The duration of a Service (the “Term”) shall be indicated in the Order. The Term shall automatically renew for successive Terms until the Order is terminated according to Section 4 herein.

4.2 Termination for Convenience.

No refunds or credits for partial Terms or unused Services will be provided. You may terminate an Order at any time for convenience via the Pureport Console or API, and Services will continue through the end of the Term. You must provide thirty (30) days written notice for termination of contracts with Terms of one (1) year or greater.  Pureport may terminate this Agreement or an Order at any time for convenience in which case Services will remain available through the end of the Term of the terminated Order.

4.3 Termination for Cause.

We may terminate in whole or in part the Agreement and/or an Order immediately for: (i) providing inaccurate or incomplete information; (ii) failure to have an acceptable method of payment on file; (iii) failure to pay overdue amounts within 15 days of the due date; (iv) use of the Services in violation of the Agreement; (v) suspension of an Order for 5 days or more; or (vi) any breach of the Agreement or any portion thereof. We will provide written notice of termination unless in Our sole discretion shorter notice is necessary due to potential operational, legal or security risks. Termination for cause may result in deletion of Your account and data associated therewith. We do not provide refunds or credits for partial Terms or unused Services. Any amounts paid for Service which will not be used due to a termination for cause are explicitly agreed to be liquidated damages to assist Us in recovering costs related to the termination.

  1. Temporary Suspension

5.1 Generally.

Pureport may suspend Your access to or use of all or any portion or all of the Services immediately upon notice to if Pureport determines: (a) Your use of the Service Offerings (i) poses a security risk to the Services or any third party, (ii) could subject Pureport, its Affiliates, or any third party to liability, or (iii) could be fraudulent; (b) You are in breach of this Agreement, including without limitation, the payment obligations; or (c) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

5.2 Effect of Suspension

If Pureport suspends Customer’s right to access or use any portion or all of the Services, (a) Customer remains responsible for all fees and charges incurred during the period of suspension; and (b) Customer will not be entitled to any service credits under the Service Level Agreement for any period of suspension. Pureport will remove the suspension promptly after the cause(s) of the suspension have been removed.

  1. Pureport Console: API

You may designate which users are allowed to perform which functions, via various access levels and permissions on the Pureport Console account. You acknowledge that users who are authorized to make modifications or add Services via the Console or API may incur additional Fees. Pureport will provide a confirmation receipt for any modified or additional orders for Services placed via the Console or API. You are solely responsible for establishing and maintaining the security and confidentiality of its usernames, passwords, and other security data. You agree to immediately notify Pureport if there is any unauthorized use of passwords or other security data, or any use inconsistent with the terms of this Agreement.  Pureport may change or discontinue any API for the Services from time to time, but will use commercially reasonable efforts to continue supporting the previous version of any API changed.  Pureport reserves the right to deactivate Your access to the API in the event no activity has been logged for at least six (6) months.

  1. Proprietary Rights

7.1 Your Proprietary Rights and License.

Your existing intellectual property shall remain Yours. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to the use of Content. You grant to Us a worldwide, nonexclusive, irrevocable, perpetual, fully paid up license to access, store, copy, transmit and use the Content in relation to the Services and to improve the Service we provide to You and improve or enable related Services or to benefit You and our community of users by, for example, using logs or other data to detect future attacks faster and more precisely.

7.2 Our Proprietary Rights.

All data, source code or information developed, derived or provided by Us or Our suppliers by providing Services under this MSA or an Agreement or on the Site, and any know-how, methodologies, or processes used by Us to provide the Services, including, without limitation, copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Our Materials”) but excepting any open source software, shall be the sole and exclusive property of Us or Our suppliers. Aggregated Data is Our sole and exclusive property. The look and feel of the Services and the Site is Our proprietary intellectual property. All rights reserved.

7.3 Restrictions.

You shall not use or allow others to use a Service or any portion thereof in any manner for which is not intended, including modifying or altering the service in any manner. You shall not, directly or indirectly, reverse engineer, decompile, disassemble, branch or otherwise attempt to derive source code or other trade secrets from the Services or the Site, or access the Services in order to build a competitive product or service or copy any features, functions or graphics of the Service.

7.4 Suggestions.

We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including users, relating to the operation of the Services.

  1. Confidentiality

8.1 Definition of Confidential Information.

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Content; Our Confidential Information includes the Services and Our Materials; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (i) is independently developed by the Receiving party; or (ii) is lawfully received by the receiving party free of any obligation to keep it confidential; or (iii) becomes generally available to the public other than by breach of this Agreement.

8.2. Protection of Confidential Information.

Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Confidential Information shall: (i) be held in confidence; (ii) be used only for purposes of the Agreement (including in the case of Pureport, the ability to monitor and record transmissions in order to detect improper activity and to operate, maintain and improve the Services) and using the Services; and (iii) not be disclosed except to the receiving party’s employees, agents and contractors having a need-to-know (provided that such agents and contractors are not direct competitors of either party and agree in writing to use and disclosure restrictions as restrictive as this Article), or to the extent required by law (provided that prompt advance notice is provided to the disclosing party to the extent practicable.

  1. Disclaimer of Warranties

We make no representations or warranties of any kind whether express, implied, statutory or otherwise, as to the services or their operation or to the content, services or products on the site and Pureport specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement to all of these, to the maximum extent permitted by applicable law. Our Services are provided “as is,” and are exclusive of any warranty whatsoever. We do not warrant the Service or that the site will be free from defects and we will not be liable for any damages of any kind arising from the use of the Site or the Service. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party service providers.

  1. Limitation of Liability

10.1 Monetary Damages.

Our liability for all claims related to the Agreement or any Services will not exceed the amount of any actual direct damages You incurred up to the amounts paid to us in the 12 months preceding the incident for the Order under which the claim arose. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability.

10.2. Exclusion of Consequential and Related Damages.

In no event will either party have any liability to the 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 such damages. The foregoing disclaimer will not apply to the extent prohibited by law. This 8.2 will not apply with respect to breach of a party’s confidentiality obligations hereunder or with respect to damages for which a party has an obligation to indemnify the other party hereunder.

  1. Indemnity

You agree to indemnify and hold Us and our officers, directors, subsidiaries, affiliates, employees, agents and contractors harmless from any claim or demand including reasonable attorney’s fees, arising out of Your: use of or connection to the Service; violation of the Agreement or rights of another; or Your Content.

  1. Compliance with Laws

Each party is responsible for complying with: (i) laws and regulations applicable to its business and content; and (ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, reexport, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. You are responsible for Your use of the Services and third party products and services. As a condition of using a Service, You warrant that You will not use the Service for any purpose that is unlawful or prohibited by this Agreement or the Policies.

  1. Additional Terms and Conditions

13.1 Updates.

We may update and modify the MSA, SLA and/or Policies from time to time. Updates are binding as of the effective date. Continued use of the Service for more than thirty days after any such changes shall constitute consent to the changes. Should You not agree with a change to this Agreement, You may cancel an Order without penalty in accordance with Section 4.2.

13.2 Notices.

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery or (b) written verification of receipt by established overnight courier, or (c) confirmation of email message sent to the designated email address, or (d) upon delivery if sent by US certified mail prepaid return receipt. Notices to Us shall be addressed to:  Pureport Inc., 305 Church at North Hills Street – Suite 1130, Raleigh, NC 27609 or via email to: legal@pureport.com. Notices to You shall be addressed to You at the address specified by You in the Pureport Console.

13.3 Governing Law, Jurisdiction, and Dispute Resolution.

All matters relating to Your access to, or use of the Services shall be governed by the laws of the State of North Carolina, USA and that You consent to mandatory arbitration in the jurisdiction and venue of Raleigh, NC USA. The party substantially prevailing at any subsequent proceeding will be entitled to recover all related costs and expenses, including reasonable attorney’s fees.

13.4 Relationship of the Parties.

Both Parties agree that no joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this Agreement or use of the Services. You agree We may publicly refer to You as a customer to the Services in a publicity or marketing communication.

13.5 Personal Data and Third-Party Vendors.

If You, your clients or end users disclose any personal data to Us, You (i) agree that We, our suppliers and affiliates may store, process and use such personal data consistent with applicable laws and regulations for the purpose of providing the Services or for purposes connected with the subject matter of the relationship between the parties; (ii) acknowledge that such use and processing may include the transfer of such personal data to Our suppliers and affiliates worldwide and /or storage in a local or foreign database; (iii) agree that You will obtain all required consents to such processing from the data subjects; and (iv) agree that We, our suppliers and affiliates will not be liable for any damages caused by our processing, transfer or storage of any personal data.

You agree that We may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service and agree We will not be liable for any damage caused thereby.

13.6 No Waiver of Rights.

The failure of either party to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The Master Service Agreement constitutes the entire agreement between You and Us and governs Your use of the Service, superseding any prior agreements between You and Us.

13.7 Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement immediately upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.8 Entire Agreement, Severability.

The terms of this Master Service Agreement and the Agreement it governs constitute the entire agreement with respect to Your access to and use of the Services and related Site. If any provision of this Agreement is unlawful, void, or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability. Failure by a Party to insist on enforcement of any provision of the Agreement will not affect the validity or enforceability, or be a waiver of future enforcement, of any provision of the Agreement.

13.9 Survival.

The expiration or termination of this Agreement shall not relieve either Party of those obligations that by their nature are intended to survive, including, without limitation, confidentiality, indemnification, limitation of liability, payment and governing law/venue.