Guardian Digital, Inc. Terms And Conditions

Please read this agreement carefully before using a Guardian product. By the use of a Guardian product, customer agrees to be bound by the terms of this agreement.

The General Terms and Conditions (“General Terms”), together with all applicable Sections (collectively, the “Agreement”) comprises a legal agreement between you, individually, and/or a legal entity (“Customer”), and Guardian Digital, Inc. (“Guardian”). If you are unable to be legally bound by this Agreement or do not consent to the terms of this Agreement, your use of the Products is strictly prohibited. Your use of the Products is subject at all times to this Agreement, as may be amended from time to time. If you do not unconditionally agree to the foregoing, discontinue the installation or use of the Products. If you proceed with use, you are (i) representing and warranting that you are authorized to bind the Customer; and (ii) agreeing to such Terms contained herein.

1. Definitions

“Deliverables” means any written reports and materials that are created specifically for Customer as a result of Professional Services described herein (“Professional Services Terms”).

“Documentation” means manuals or other materials provided by Guardian, in electronic or other form related to the Products.

“Effective Date” shall mean the date of receipt of, or Subscription to, the Products.

“Guardian Materials” means all Guardian proprietary materials, including, but not limited to, Deliverables, Products and intellectual property related to Products and Documentation.

“Hosted Service” means the right to use a cloud system or platform hosted by Guardian, which provides the services and functionality set forth in the applicable Documentation.

“Hosted Service Term” means the length of time for which a Hosted Service is purchased.

“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state or jurisdiction.

“Order” means a signed Guardian Digital quote, signed purchase order or similar document submitted to Guardian under which the Products are provided for Customer’s use

“Product” means, collectively, any Software, Subscriptions, Hosted Service, Services and any combination thereof.

“Professional Services” means services provided by Guardian under a Statement of Work and/or set forth on an Order.

“Service” or “Services” means Professional Services and Support Services.

“Software” means software used to provide a Hosted Service or any software licensed to Customer as a Subscription, including any Updates thereto.

“Statement of Work” or “SOW” means a document between Guardian and Customer, describing Professional Services, rates and timelines for those Professional Services.

“Subscription” means a license provided by Guardian for a Subscription Term under which Guardian provides access to certain features and functionality, as described in the Documentation, which is provided subject to the applicable Section, if any, and these General Terms.

“Subscription Term” means the length of time for which a Subscription is purchased.

“Support Term” means the length of time for which the Support Service is purchased.

“Support Services” means the maintenance and technical support services provided by Guardian with respect to each Product (“Support Services Terms”).

“Update” means various enhancements, error corrections and bug fixes to the Software.

2. Orders and Statements of Work

2.1. Orders. Products will only be provided to Customer after Guardian Digital has received and accepted an Order for such Product. Orders are not binding until accepted in writing by Guardian Digital. All Orders will be governed by this Agreement and are only cancelable and refundable within the first 30 days after delivery to Customer.

2.2. Statements of Work. Each Statement of Work is governed by this Agreement. Guardian will not be obligated to perform any Professional Services until a Statement of Work describing those Professional Services has been agreed upon by both parties, or an Order listing those Professional Services has been accepted by Guardian in writing.

3. Payment Terms

3.1. Fees and Expenses. Customer will pay Guardian the fees specified on the invoice associated with each Order or Statement of Work (“Fees”). Fees for usage in excess of amounts purchased will be billed by Guardian in the next billing cycle and Customer acknowledges that such additional fees must be paid in accordance with the terms herein.

3.2. Payment. Payment is due within thirty (30) calendar days of the date of each invoice. Payment will be made by credit card, wire transfer or another prearranged payment method unless Guardian has extended credit terms to Customer. All Fees described in an Order or Statement of Work will be fully invoiced in advance, unless otherwise agreed to in writing by Guardian. If any payment is past due, Guardian may, without limiting any remedies available to Guardian, suspend performance until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law.

3.3. Increases. Guardian reserves the right to increase prices for Products at any time, provided however that any price increase for Subscriptions, Hosted Services and Support Services will not go into effect until the end of the then-current term, as applicable.

3.4. Taxes. All Fees are exclusive of all sales, use, excise, value added, goods and services, withholding and other taxes, and all customs, duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale or use of the Products, which shall be invoiced to and paid by the Customer. If Customer is required by law to make any deduction or withholding on any payments due to Guardian, Customer will notify Guardian and will pay Guardian any additional amounts necessary to ensure that the net amount Guardian receives, after any deduction or withholding, equals the amount Guardian would have received if no deduction or withholding had been required. Additionally, Customer will provide Guardian with evidence, to the reasonable satisfaction of Guardian, showing that the withheld or deducted amounts have been paid to the relevant governmental authority. For purposes of calculating sales and similar taxes, Guardian will use the address set forth on the Order or Statement of Work, as applicable, for the jurisdiction to which Products and shipments are delivered unless Customer has otherwise notified Guardian. Customer will provide tax exemption certificates or direct-pay letters to Guardian as applicable.

3.5. Payment Disputes. Customer must notify Guardian of any billing problems or discrepancies within sixty (60) days of the applicable Guardian invoice date. Customer must send such notification to Guardian. If Customer does not bring such problems or discrepancies to Guardian’s attention within such sixty (60) day period, Customer agrees that it waives the right to dispute such problems or discrepancies.

3.6. Offsets. Customer shall pay all amounts due and payable to Guardian under this Agreement to Guardian in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law and in compliance with Section 4.4 (“Taxes”).

4. Ownership

Software. Guardian retains right, title and ownership to all Software, and Customer’s license and usage rights to Software (“Software Use and Restrictions”).
Customer Data. “Customer Data” is all data, including text, sound, video, or image files and software, that Customer provides to Guardian, or that is provided on Customer’s behalf. Customer retains ownership of Customer Data at all times. Guardian will use Customer Data only in accordance with the Terms contained herein.

5. Modification

Guardian reserves the right to modify this Agreement at any time, in its sole discretion, without liability to Customer. The Agreement, as amended, will be effective upon use of the Products for all existing users immediately after any amended terms are posted online. If Customer has signed up for email updates, Guardian will provide email notice to Customer of the update. Customer’s continued use of the Products shall be deemed acceptance of the modified terms.

6. Online Service Level Guarantee

Guardian shall make the Covered Services available for Customer 99.99% of the Term (“Service Level Guarantee”). “Covered Services” means hosting and connectivity provided by Guardian, and managed Services as more particularly set forth in the Order Form. For the purpose of this Agreement “available” means the Covered Services functioning as intended without significant interruption.

6.1. Reporting Requirements. Customer shall report outages to Guardian via the Notice provisions provided herein. If the Guardian electronic mail system is unreachable, Customer shall notify Guardian’s network operations center (“NOC”). Additionally, to be eligible for a Service Level Credit, Customer must (i) make written request for credit via email to: This email address is being protected from spambots. You need JavaScript enabled to view it. within five (5) business days after Customer has experienced the downtime.

6.2. Credit Policy. For any billing month in which Guardian fails to meet the foregoing guarantee with respect to a given Covered Service, Customer will, subject to the Reporting Requirements, receive as its sole and exclusive remedy and Guardian’s sole obligation for such failure, credit to its account based on the chart set forth below and the actual duration of the interruption of such Service, as measured 10 minutes after Customer notification of a Covered Service interruption (evidenced by issuance of a ticket) to the restoration of the impacted Covered Service. Guardian will determine the end of downtime by a trace-route to Customer’s machine from outside the Guardian network. The amount of credit is stated below as a percentage of the minimum recurring fees due to Guardian for such interrupted Covered Service for the applicable calendar month.

Covered Services Interruption	Credit
Uptime of 100% (less than 10 minutes of downtime)	None
Uptime of 99.99% - 99.90% (between 10 and 42 minutes of downtime)	1%
Uptime of 99.89% - 99.0% (between 43 and 432 minutes of downtime)	2%
Uptime of 98.9% - 98.0% (between 433 and 864 minutes of downtime)	5%
Uptime of 97.9% - 97.0% (between 865 and 1,296 minutes of downtime)	10%
Uptime of 96.9% - 95.0% (between 1,297 and 2,160 minutes of downtime)	25%
Uptime of less than 95.0% (more than 2,161 minutes of downtime)	50%

7. Term

This Agreement shall start on the Effective Date. This Agreement shall run for a period of one (1) year from the Effective Date and shall automatically renew, and be separately invoiced, for consecutive one (1) year periods unless either party provides written notice of termination within sixty (60) days prior to the anniversary date of the Effective Date, or unless Guardian and the Customer agree upon an alternate Term which is reflected on the invoice, in which case the terms of the invoice shall govern. Payment for each renewal Term shall be due on the renewal date at the current rates for support of the Software. If payment is not received by Guardian within five (5) business days after the renewal date, Guardian may immediately terminate Customer access to the Software. Moreover, this Agreement may be terminated for non-payment or material breach. Fees paid or due are non-refundable unless Guardian has materially breached this agreement and has failed to cure the breach after thirty (30) days written notice.

8. Support Services and Product Upgrades

8.1. Support Services.

a. Support Services Purchase. Support Services may be purchased separately, or for Hosted Services, may be bundled into the price. Customer is not entitled to Support Services until Guardian receives payment in full for such Support Services.

b. Support Services Entitlement. For Customers with active Support Services, the following shall apply:

i. Support Services will only be available for the specific Product for which the Support Services is purchased. Applying Updates or receiving Support Services on systems where no valid entitlement has been purchased is strictly forbidden and in violation of this Agreement.

ii. For Software, Customer is entitled to Updates to Software. Guardian shall provide Customer with all Updates, without additional charge. Upon delivery to Customer, each Update will constitute Software and will thereafter be subject to and governed by this Agreement, including without limitation the license and warranty terms.

iii. Support Services for Software are required at all times for continued access to the full functionality and proper operation of the Product. Customer acknowledges that failure to pay for ongoing Support Services will limit or degrade the functionality of the Products.

9. Intellectual Property

All Intellectual Property Rights in Guardian Materials belong exclusively to Guardian. Customer will not (and will not allow any third party to): (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms in any Guardian Materials (except to the limited extent that applicable law prohibits reverse engineering restrictions); (ii) sell, resell, distribute, sublicense or otherwise transfer the Guardian Materials, or make the functionality of the Guardian Materials available to any other party through any means (unless Guardian has provided prior written consent); (iii) use the Guardian Materials in connection with the development of products, services or subscriptions that compete with the Guardian Materials; (iv) use any Guardian trademarks for any purpose not expressly granted by Guardian in advance and in writing; or (v) reproduce, alter, modify or create derivatives of the Guardian Materials.

10. Waiver of Consequential Damages and Limitation of Liability.

10.1. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

10.2. LIMITATION OF LIABILITY. THE TOTAL AGGREGATE LIABILITY OF GUARDIAN AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS OWED OR PAID BY CUSTOMER FOR THE RELEVANT PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.

10.3. APPLICABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE; (C) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCTS, FROM INABILITY TO USE THE PRODUCTS OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.

11. Export and Compliance with Laws

11.1. Export.

a. The Products, including technical data, are subject to U.S. export control laws, including, but not limited to, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import Products.

b. Customer shall not: (a) permit any third party to access or use the Products in violation of any U.S. law or regulation; (b) export the Products or otherwise relocate them unless such export and/or relocation is in full compliance with all applicable local and U.S. laws and regulations. Without limiting the foregoing, Customer shall not permit any third party to access or use the Products in, or export it to, a country subject to a United States embargo (currently, Cuba, Iran, North Korea, Russia, Sudan, and Syria); or (c) authorize the relocation of the Products to a prohibited entity, territory or country, or take any action otherwise in violation of any applicable restrictions or regulations.

11.2. Compliance with Laws. Customer agrees to comply with all applicable laws related to its performance of the obligations set forth in this Agreement, including, but not limited to, any applicable privacy laws.

12. Confidential Information

12.1. Definition. “Confidential Information” refers to the following information disclosed by one party (“Discloser”) to the other (“Recipient”): (a) any document Discloser marks as “Confidential” or “Proprietary”; (b) any information Discloser orally designates as being “Confidential” at the time of disclosure, or which given the circumstances of the disclosure and the nature of the information would reasonably be considered confidential; (c) the non-public features and functions of the Products, Guardian’s price lists, technology, trade secrets, marketing strategies, customer lists, mail lists and information concerning the design or methods of manufacture of the Products, for which Guardian is Discloser; (d) this Agreement; and (e) any other nonpublic, sensitive information disclosed by Discloser. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure and not in violation of any confidentiality obligations; (ii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iii) is approved for release in writing by Discloser.

12.2. Maintenance of Confidentiality. Each party agrees that it shall: (i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a similar nature; (ii) limit disclosure to those persons within Recipient’s organization who have a clear and well-defined “need to know” and who have previously agreed in writing to obligations at least as stringent as the provisions hereof, either prior to receipt of Confidential Information as a condition of their employment or in order to obtain the Confidential Information; (iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, Products or other tangible objects which embody the other party’s Confidential Information and/or which are provided to the party hereunder; and (iv) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order or Statement of Work. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.

12.3. Exceptions. The parties agree that the foregoing shall not apply to any information that Recipient can prove, through written evidence: (i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient; (ii) was already in its possession or known by Recipient prior to disclosure by Discloser to Recipient; (iii) is independently developed by Recipient without use of, or reference to, any of Discloser’s Confidential Information; or (iv) was rightfully disclosed to it by, or obtained from, a third party without an obligation of confidentiality. Recipient may make disclosures required by law or court order provided that Recipient: (a) uses diligent efforts to limit disclosure and to obtain, if possible, confidential treatment or a protective order; (b) has, to the extent legally permissible, given prompt advance notice to Discloser of such required disclosure.

12.4. Injunction. Recipient agrees that breach of this Section 12 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

12.5. Return of Confidential Information. With respect to each item of Confidential Information, the obligations of Section 12.2 (“Maintenance of Confidentiality”) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof. Where permissible by law, Recipient may retain one copy of all written materials returned to provide an archive record of the disclosure, which remains subject to the confidentiality terms of this Section 12.

12.6. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title and interest in and to all of its Confidential Information.

12.7. Collection of Customer Data. Customer agrees to allow Guardian to collect Customer Data from its Products in order to enhance its security products and to optimize and monitor the performance of the Product. Customer Data will be collected electronically and automatically. Customer Data will be kept private and will only be reported by Guardian in the aggregate.

13. Customer Data Retention

13.1. Guardian understands the importance of our customers’ personal and business data, and we take steps to secure and protect it whenever it is stored in our cloud or other infrastructure. Refer to Guardian’s Privacy Policy located online at https://guardiandigital.com/privacy-policy.

Guardian will retain Customer Data and information for so long as there is an active relationship unless otherwise prohibited by law. After expiration or termination of a Hosted Service or Subscription, Guardian will disable Customer’s account and may delete Customer Data in Guardian’s sole discretion, or as required by law.

13.2. Guardian is committed to helping protect the security of Customer Data. Guardian has implemented, and will maintain and follow, appropriate technical and organizational measures intended to protect Customer Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss or destruction.

Guardian shall have a security policy that explicitly addresses and educates employees and non-employee workers to ensure the security and confidentiality of Customer Data. The policy has been developed by senior management and delineates the process to follow in the case of a breach by employees and/or workers. Guardian shall cause Guardian employees, non-employee workers, consultants, and temporary workers to be made aware of, and be required to adhere to, its security policies.

Guardian periodically performs audits and testing of its systems that contain any Customer Data. These periodic audits and testing are conducted at least annually by Guardian employees using the latest security evaluation protocols.

13.3. If Guardian becomes aware of any unlawful access to any Customer Data stored on Guardian’s systems or in Guardian’s locations that result in the loss, disclosure or modification of Customer Data (a “ Security Incident”), Guardian will promptly: (a) report the Security Incident to the Customer; (b) investigate the cause of the Security Incident; and (c) take necessary action to minimize or eliminate the effects of the Security Incident.

Security Incident notification will be delivered to one or more Customer administrators by the most expedient and efficient manner as selected by Guardian, including via e-mail. It is Customer’s sole responsibility to ensure that its administrators maintain accurate contact information on each applicable Hosted Services portal. Guardian’s obligation to report or respond to a Security Incident under this section is not an acknowledgement by Guardian of any fault or liability with respect to a Security Incident. Customer must notify Guardian promptly of any possible misuse of its accounts or authentication credentials or any Security Incident that comes to their attention.

14. Use of Guardian’s Systems

14.1. Customer must abide by any technical limitations in Guardian’s systems and shall not download, reverse engineer, or otherwise remove copies of any source code from such systems. If Customer installs or uses any third-party software with Guardian’s systems, Customer’s shall abide by such third party’s license terms and Customer may not use such third-party software in such a way that would infringe Guardian’s or the third party’s Intellectual Property Rights in any way. Guardian shall be in no way responsible for such third-party software and Customer is solely responsible for any third-party software that it installs or uses with Guardian’s systems.

14.2. Neither Customer nor Customer’s employees, agents, contractors, and the like may use Guardian’s systems in such a way as to: (a) copy or download files or information unless Customer has contractual ownership or access rights to such files or information; (b) scan or test the vulnerability Guardian’s systems, or hack any security or access measures; (c) attempt to send a virus, malware, spamming, or mail-bombing or otherwise disrupt other users; (d) send unsolicited communications, bulk e-mail, or spam to other users; (e) attempt to access another user’s account; (f) send deceptive or false information, including “spoofing” or “phishing”; (g) publish anything that is misleading, infringing or fraudulent; (h) misrepresent its identity or its affiliation with another entity; (i) publish or share content that is illegal, offensive, or defamatory; (j) violate the rights of others; or (k) try to hack or disrupt any service, device, system, data, account or network.

15. Termination and Survival

15.1. Termination for Cause. Either party may terminate this Agreement upon written notice of a material breach by the other party subject to a thirty (30) day cure period (“Cure Period”). If the breaching party has failed to cure the breach within the Cure Period after receipt by the breaching party of written notice of such breach, the non-breaching party may terminate this Agreement. This Agreement may be automatically terminated by Guardian in the event Customer has breached any license restriction and, in Guardian’s sole discretion, that breach cannot be adequately cured within the Cure Period.

15.2. Support Services. Support Services will begin on the date of delivery of the Products and will continue in effect for the duration of the Support Term. Support Services will renew at the end of any Support Term, at the then-current price, for an additional period equal to the length of the prior Support Term. Either party may provide notification of its intention to not renew at least sixty (60) days prior to the expiration of the then-current Support Term. Customer may terminate Support at any time, for its convenience, on thirty (30) days’ prior written notice to Guardian; provided, however, that no refund shall be owed, and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Support Term within thirty (30) days of the effective date of the termination.

15.3. Subscriptions. The term of each Subscription will begin on the date of Delivery of the Products and will continue in effect for the duration of the Subscription Term. Subscriptions will renew at the end of any Subscription Term, at the then-current price, for an additional period equal to the length of the prior Subscription Term. Either party may provide notification of its intention to not renew at least sixty (60) days prior to the expiration of the then-current Subscription Term. Customer may terminate a Subscription at any time, for its convenience, on thirty (30) days’ prior written notice to Guardian; provided, however, that no refund shall be owed and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Subscription Term within thirty (30) days of the effective date of the termination.

15.4. Hosted Services. The term of each Hosted Service will begin on the date of Delivery and will continue in effect for the duration of the Hosted Service Term. Hosted Services will renew at the end of any Hosted Service Term, at the then-current price, for an additional period equal to the length of the prior Hosted Service Term. Either party may provide notification of its intention to not renew at least sixty (60) days prior to the expiration of the then-current Hosted Service Term. Customer may terminate a Hosted Service at any time, for its convenience, on thirty (30) days’ prior written notice to Guardian; provided, however, that no refund shall be owed and Customer is obligated to pay any remaining Fees owing for the remainder of the then-current Hosted Service Term within thirty (30) days of the effective date of the termination.

15.5. Professional Services; Statements of Work. The term of each SOW will be as set forth in the applicable SOW. If no term is expressed in a SOW, then the term of that SOW will begin upon commencement of the Professional Services and will continue until the Professional Services described in that SOW are complete or the SOW is earlier terminated as set forth herein. Unless otherwise stated in a SOW, Customer may terminate a SOW at any time for its convenience by providing at least thirty (30) days’ prior written notice to Guardian; provided, however, that no refund will be owed and Customer is obligated to pay any amounts owing for Professional Services and Deliverables provided or performed under that SOW up to and including the date of termination.

15.6. Effect of Termination. Except for termination of this Agreement by Guardian for Customer’s breach, no termination of this Agreement shall impact any active Subscription, Hosted Service, Support Services or SOW that extends beyond such termination, and this Agreement shall continue to govern and be effective until expiration or termination of such Subscription, Hosted Service, Support Services or SOW. The provisions of any other General Terms which by their nature should survive termination shall survive termination of this Agreement.

16. Governing Law, Venue and Dispute Resolution

16.1. GOVERNING LAW AND VENUE. THESE TERMS AND THE USE AND PROVISION OF PRODUCTS WILL BE GOVERNED SOLELY BY THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REFERENCE TO ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD APPLY THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION TO THE PARTIES’ RIGHTS OR OBLIGATIONS. THE PARTIES CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS IN THE STATE OF NEW JERSEY.

16.2. DISPUTE RESOLUTION. THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE CUSTOMER MAY HAVE WITH GUARDIAN. PLEASE READ IT CAREFULLY.

The parties will attempt to resolve any claim, dispute or controversy (whether in contract, tort or otherwise) against Guardian, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, “Guardian”) arising out of or relating to this Agreement, the Guardian Materials, Guardian advertising, or any related purchase (a “Dispute”) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration. The Arbitration will be conducted before one (1) independent and impartial arbitrator. The arbitration hearing shall take place in New Jersey and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base his or her award on the terms of this Agreement and will follow the law and judicial precedents that a Superior Court Judge sitting in the County of Bergen, State of New Jersey would apply to the Dispute. The arbitrator shall render his or her award in writing and will include the findings of fact and conclusion of law upon which his or her award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence, content and results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.

THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

17. Permission to Use Logo

Customer grants Guardian permission to use Customer’s name and/or logo on the Guardian website, or any other marketing material when referring to Customer. Customer will retain all title and rights in its name and logos.

18. Changes to Products

Guardian reserves the right at any time to modify, suspend or discontinue providing the Products or any part thereof and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases in its sole discretion, without prior notice.

19. Relationship of the Parties

The parties intend that the relationship created between them by virtue of this Agreement shall be that of an independent contractor, and nothing herein shall be construed to create an agency, joint venture, partnership or other form of business association between them. Guardian and its agents, employees and servants shall not be deemed to be an employee, agent or servant of Customer or its affiliated entities, if any. Guardian is not to be considered an agent or employee of Customer for any purpose, and none of the benefits provided by Customer or its employees are available to Guardian or Guardian’s employees, agents or servants. Guardian shall be solely and entirely responsible for Guardian’s acts and for the acts of Guardian’s agents, employees, servants and subcontractors during the performance of this Agreement.

20. Not Held Against Drafter

The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and this Agreement will not be construed in favor of or against either party by reason of authorship.

21. Headings

The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.

22. Force Majeure

Except with respect to payment of Fees, neither party shall be liable for any failure to timely perform any of its obligations under this Agreement if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including, without limitation, fire, flood, strikes, hurricanes, and other industrial disputes, failure of raw material, failure of transport, accidents, pandemics, wars, riots, insurrections, acts of God or orders of any government department or agency.

23. Severability

In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

24. Notices

Guardian may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to: Guardian Digital, Inc., 103 Godwin Avenue, Suite 314, Midland Park, NJ 07432, Attn: CEO, and such notices will be deemed received 72 hours after they are sent.

25. Waiver

Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

26. Assignment

Customer may not assign or transfer any of its rights or obligations under this Agreement without Guardian’s prior written consent. Guardian may freely assign its rights and obligations under this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void. Except to the extent forbidden in this section, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

27. Remedies Not Exclusive

Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.

28. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral. If any term or condition in this Agreement conflicts with any term or condition in any Order, invoice or similar supplementary document submitted by Customer, the term or condition set out in this Agreement shall prevail. Unless otherwise expressly and mutually agreed in writing by the parties, under no circumstances shall any Order, invoice or similar supplementary document issued by Customer in connection with the Products supersede the terms of this Agreement. Any such documentation shall be solely for Customer’s internal business purposes, and in no event shall any terms and conditions, or other charges of any such document modify or become a part of this Agreement or become binding on Guardian, even if signed by Guardian.