Terms of Service and Use
(Please note that the following Terms of Service apply to registered, paid users of the SecurityDataManager.Com Services, not to visitors to the SecurityDataManager.Com website generally.) SecurityDataManager.Com accepts Customer’s Purchase Order on the express condition that Customer agrees to and is bound by the terms and conditions set forth below (the “Terms of Service”). All Purchase Orders by Customer shall be subject to the Terms of Service, which are incorporated by reference therein. Such agreement shall be conclusively and irrevocably evidenced by Customer accepting provision of Services under such Purchase Order or by Customer’s payment of an invoice covering such Purchase Order. The Terms of Service are made between you, the “Customer”, as identified in the Purchase Order (who may be referred to in the Terms of Service by “you or “your”), and SecurityDataManager.Com , a subsidiary of CTG (7786 Dawson Drive SE, Warren, Ohio 44484 (“SecurityDataManager.Com”, who may also be referred to in the Terms of Service as “we” or “us”). SecurityDataManager.Com may from time to time modify the Terms of Service and will post a copy of the amended Terms of Service on the Site at this specific URL, so Customer is encouraged to periodically review the Terms of Service. Your continued use of the Services following the posting of any changes to the Terms of Service constitutes acceptance of those changes. If there are any significant changes to the Terms of Service that materially affect your relationship with us, you will be notified upon logging-in to the Services or via email.
1. Definitions
1.1“Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer here under.
1.2“Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Purchase Order. Authorized Users may include Customer’s authorized and identifiable third party consultants, outsources, contractors and other service providers.
1.3“Customer Data.” Customer’s information or other data processed, stored or transmitted by, in, or through the Services, including without limitation personal relating to Customer’s personnel, customers, and prospective customers (https://www. SecurityDataManager.Com/) (tel:3305056060) (https://www. SecurityDataManager.Com /) Terms of Service – SecurityDataManager.Com https://www. SecurityDataManager.Com /tos/ 2/12 such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.4“Proprietary Rights.” Any rights with respect to patents, copyrights, Confidential Information, trade secrets, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual property.
1.5“Purchase Order.” A document in written or electronic form indicating that it is a “purchase order” which incorporates these Terms of Service, if mutually agreed upon and duly executed by the parties. In order to be binding, a “Purchase Order” must comply with the above requirements.
1.6“Services.” The web services described and specified in the applicable Purchase Order and any updates or upgrades to such services which may be generally released by SecurityDataManager to its customers from time to time.
1.7“Site.” Site may refer to any of SecurityDataManager.Com s “SecurityDataManager.com”, “SecurityDataManager.com” websites, or any white label website through which Customer accesses the Services, including all their respective subdomains present and future, and including but not limited to the SecurityDataManager Technology.
1.8“SecurityDataManager Technology.” The computer hardware, software and software updates, and all improvements or enhancements thereto, and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site.
2. Effects of Terms of Service The sale of the Services is subject to and governed by the Terms of Service and the terms and conditions of Customer’s Purchase Order, and no other agreement or any other understanding shall be binding on SecurityDataManager or apply in any manner to the sale of such Services. No modification of the Terms of Service shall be of any force or effect unless signed by an authorized officer of SecurityDataManager. No specification prepared by Customer relative to a Purchase Order shall be binding on SecurityDataManager for any purpose unless signed by an authorized officer of SecurityDataManager.
3. Terms of Payment Unless otherwise specified, prices are quoted in Canadian dollars for Services being sold by SecurityDataManager. Payment terms are net thirty (30) days for cash or check without discount. Interest at the rate of 2% per month will be charged on past due accounts (26.8% per annum). If Customer’s account is past due, in addition to other rights and remedies, SecurityDataManager may suspend provision of Services or performance here under until Customer’s account becomes current or until SecurityDataManager receives satisfactory security or cash prior to such provision of Services or performance here-under. 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 3/12
4. Proprietary Rights Ownership.
4.1 You acknowledge that:
(a) the Services and Site contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and
(b) SecurityDataManager and/or third parties own all right, title and interest in and to the Services and Site and content that may be presented or accessed through the Services and Site, including without limitation all Intellectual Property Rights therein and thereto. You are being granted the limited license right to use the Services as contemplated in your Purchase Order and you hereby acknowledge that no title or ownership in the Services is being transferred or assigned and these Terms of Service should not be construed as a sale of any rights in the Services. All rights not specifically granted under these Terms of Service are reserved to SecurityDataManager and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
4.2 You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Services, Site, or SecurityDataManager Technology, or content that may be presented or accessed through the Services or Site for any purpose, unless otherwise permitted by SecurityDataManager; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Services or Site; or (iii) remove, obscure, or alter SecurityDataManager’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services or Site.
4.3 The content, arrangement and layout of the Site and Services including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to SecurityDataManager, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of SecurityDataManager. Any unauthorized use of the content, arrangement or layout of the Services or Site, computer code, images, logos, videos, audio or trademarks found in the Services or Site or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and SecurityDataManager may take action accordingly.
4.4 The above paragraphs further apply to third party property used as part of the Site or Services, including but not limited to third party computer code. For the purposes of the present section, “computer code” includes source code, frameworks, CSS or JavaScript files, templates, modules, or any similar files, and related documentation. 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 4/12
4.5 If you choose to communicate to SecurityDataManager suggestions for improvements to the Services or Site (collectively, “Feedback”), SecurityDataManager shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to SecurityDataManager and waive in favor of SecurityDataManager, its successors and assigns all your moral rights in the Feedback, and agree to provide SecurityDataManager such assistance as SecurityDataManager may require to document, perfect, and maintain SecurityDataManager’ rights to the Feedback. You acknowledge and agree that, by providing any Feedback to SecurityDataManager, you are not entitled to any compensation or reimbursement of any kind from SecurityDataManager under any circumstances
4.6 Any email communications sent to you by SecurityDataManager, as well as related correspondence, links, and any attached documentation is confidential, protected by intellectual property laws and subject to these Terms of Service. Any re-transmission, unauthorized use or disclosure to anyone outside your organization is prohibited and may be considered a breach of these Terms of Service, and SecurityDataManager may take action accordingly.
5.Use Restrictions Customer covenants and agrees that its use of the Services will be in a manner consistent with the Terms of Service and with all applicable laws and regulations, including but not limited to trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; (iii) to access, alter, or destroy any information of any customer of SecurityDataManager by any fraudulent means or device, or attempt to do so; or (iv) encumber, lease, rent loan, sub-license, transfer, transport or otherwise distribute the SecurityDataManager Technology.
6. Security Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, SecurityDataManager shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that SecurityDataManager is in compliance with the Security Standard and is not otherwise negligent, the parties agree that SecurityDataManager shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to SecurityDataManager at the time or any other matter beyond its control. SecurityDataManager will promptly report to Customer any unauthorized access to Customer Data 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 5/12 promptly upon discovery by SecurityDataManager, and SecurityDataManager will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
7. Monitoring of Customer’s Use SecurityDataManager reserves the right to internally monitor Customer’s usage of the Site and the Services. Any use of the Site or the Services by a Customer not specifically permitted under the Terms of Service is strictly prohibited and may result, at SecurityDataManager’s discretion, in the suspension or termination of any outstanding Purchase Order(s) for such Customer.
8. Mutual Exchange of Confidential Information The parties anticipate that each may disclose Confidential Information to the other. Accordingly, the parties desire to establish the terms governing the use and protection of Confidential Information one party (“Owner”) may disclose to the other party (“Recipient”).
8.1 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (i) all trade secrets, know how, software, software updates and enhancements, and other financial, business, or technical information of SecurityDataManager or of any of its Affiliates and contractors that is disclosed by SecurityDataManager, or on its behalf, in relation to a Purchase Order; (ii) non-public aspects of SecurityDataManager’s Site and the operation thereof, SecurityDataManager Technology, and the Services and additional services provided by SecurityDataManager, and SecurityDataManager’s business and technical information, and data; and (iii) Customer Data, and nonpublic aspects of Customer’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Services, a Purchase Order or the Terms of Service, is nevertheless disclosed here-under, and which, in any case, is disclosed by Owner or its Affiliates or contractors to Recipient in a document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
8.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information only for the purposes of a Purchase Order and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under a Purchase Order and only to its 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 6/12 employees who have a need to know for such purposes and who are bound by signed agreements to protect the received Confidential Information from unauthorized use and disclosure. 8.3 Exclusions. The restrictions of the Terms of Service on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes, publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of the Terms of Service, including compliance with Section 4; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
9. General Skills and Knowledge Notwithstanding anything to the contrary in the Terms of Service, Customer agrees that SecurityDataManager is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of SecurityDataManager
10. Errors, Defects. Customer agrees to notify SecurityDataManager of any non-conformity, error, or defect of the Services promptly after Customer’s discovery of same.
11.Taxes Any tax of any nature including, without limitation, any excise, sales, use, Goods and Services or other similar taxes which SecurityDataManager may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided by SecurityDataManager hereunder shall be the sole responsibility of Customer and shall be added to the amount to be paid here-under, and specified in the Purchase Order.
12. Limits of Contract Only the Services specifically described in a Purchase Order are subject to the Terms of Service.
13. Technical Data 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 7/12 All performance data relied on by SecurityDataManager for the provision of the Services are based upon information furnished by Customer in accordance with its requirements and SecurityDataManager assumes no responsibility for the accuracy of such information.
14. Force Majeure For all purposes hereof, force majeure includes any act of God, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays by shippers, technological or infrastructure attack or degradation, or other contingencies or causes beyond SecurityDataManager’s control which might prevent the provision of, shipment or delivery of Services covered hereby. Performance of SecurityDataManager’s obligations may be suspended pending force majeure, without SecurityDataManager being responsible to Customer for any damages or losses resulting from such suspension.
15. Customer Representations & Warranties
15.1 Customer represents, warrants and covenants that the performance of its obligations under the Terms of Service and the use of the Services (by Customer and its Authorized Users) will not violate any applicable laws or regulations.
15.2 Customer represents, warrants and covenants that the acceptance and performance of the Terms of Service: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate action; and (iii) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertaking, applicable to Customer.
15.3 Customer acknowledges that (i) SecurityDataManager does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
15.4 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, if the breach is not cured by Customer within 10 days of Customer’s receipt of written notice of the breach from SecurityDataManager, SecurityDataManager will have the right to suspend the Services until such breach is cured.
16. Limited Warranty 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 8/12 SecurityDataManager represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Purchase Order, and (ii) be free of errors and defects that materially affect the performance of such features (the “Limited Warranty”), provided that Customer notifies SecurityDataManager, in writing, of any non-conformity, error, or defect. In addition to any other remedies available at law or equity, Customer’s remedy for breach of the Limited Warranty shall be correction of non-conforming Services at SecurityDataManager’s expense.
17. Warranty Disclaimers. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, NEITHER SecurityDataManager NOR ANY OF ITS SUPPLIERS OR RESELLERS, AS APPLICABLE, MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND SecurityDataManager AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE TERMS OF SERVICE HAVE BEEN MADE RESPECTING THE SERVICES, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THE TERMS OF SERVICE. SecurityDataManager DOES NOT WARRANT THAT THE SERVICES OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT SecurityDataManager HAS NO CONTROL OVER THE INTERNET, AND THAT SecurityDataManager IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
18. Disclaimer of Actions of Third Parties SecurityDataManager does not and cannot control the flow of data to or from SecurityDataManager’s Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although SecurityDataManager will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, SecurityDataManager cannot guarantee that such events will not occur. SecurityDataManager DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT SecurityDataManager’S SUBCONTRACTORS. 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 9/12
19. Indemnity
19.1 SecurityDataManager will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of a third party claim made against Customer that the SecurityDataManager Technology or Services infringe on any intellectual property right of a third party; provided, however, that SecurityDataManager is notified in writing of such claim promptly after such claim is made upon Customer. SecurityDataManager shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without SecurityDataManager’s prior written approval. SecurityDataManager shall have no liability or obligation if the claim arises from (i) any alteration or modification to the SecurityDataManager Technology or Services by Customer, (ii) any combination of the SecurityDataManager Technology or Services by Customer with other programs or data not furnished by SecurityDataManager, or (iii) any use by Customer of the SecurityDataManager Technology or Services that is prohibited by the Terms of Service or otherwise outside the scope of use for which the SecurityDataManager Technology or Services are intended.
19.2 Each party will indemnify, defend and hold harmless the other party and its Affiliates from and against any lawsuit, liability, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of, related to, or in connection with the acts, omissions, performance (or failure to perform) of the first party, its subcontractors, or their respective employees or agents, to the extent the lawsuit, liability, loss costs or expense results from the negligence, willful misconduct or other fault of the first party, its subcontractors or their respective employees or agents.
20. Options for Infringement Claims. If any party is enjoined from using the SecurityDataManager Technology, or if SecurityDataManager believes that the SecurityDataManager Technology may become the subject of a claim of intellectual property infringement, SecurityDataManager, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the SecurityDataManager Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) in addition to any other remedies available in law or equity, terminate any outstanding Purchase Orders, in which case SecurityDataManager shall refund to Customer any and all subscription fees paid by Customer for those Services not provided by SecurityDataManager and provide, at Customer’s request and free of charge, Customer Data in a database document format. This Section 20 and the preceding Section 19 set forth the liability of SecurityDataManager to Customer for any infringement by the SecurityDataManager Technology or Services of any intellectual property right of any third party.
21. Limitation of Liability 9/17/2017 Terms of Service – SecurityDataManager https://www.SecurityDataManager.com/tos/ 10/12 THE LIABILITY OF SecurityDataManager WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE TOTAL FEES PAID BY THE CUSTOMER FOR THE USE OF THE SERVICES IN THE TWELVE (12)-MONTH PERIOD LEADING UP TO THE DATE ANYSUCH LIABILITY ARISES AND IN NO EVENT SHALL SecurityDataManager BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY CUSTOMER.
22. Assignment Customer shall not assign or transfer its rights or obligations under the Terms of Service without the written consent of SecurityDataManager and any assignment made without such consent shall be null and void.
23. No Partnership No agency, partnership, joint venture, or employment is created between Customer and SecurityDataManager as a result of the Terms of Service, and Customer does not have any authority of any kind to bind SecurityDataManager in any respect whatsoever.
24. Governing Law, Jurisdiction and Invalidity Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing and any applicable Purchase Order set forth the sole and entire agreement between the parties with respect to the Services supplied here under. These Terms of Service shall be governed by and interpreted in accordance with the laws of the province of Quebec and the federal laws of Canada applicable therein, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Customer agrees that any action at law or in equity arising out of or relating to the Terms of Service or your use of the Services shall be filed and adjudicated only in the federal or provincial courts located in Ohio, and Customer hereby irrevocably and unconditionally consents and attorneys to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Terms of Service or your relationship with SecurityDataManager. The foregoing choice
26. Miscellaneous Provisions If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service shall remain in full force and effect. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. 9/17/2017 Terms of Service