Terms
Effective as of May 1th, 2019
These Service Terms and Conditions (“Agreement”) constitute a contract between SOAK A/S, Foldegade 33, 7100 Vejle, Denmark (“SQL Powerhouse”, and you. SQL Powerhouse wishes to provide and you wish to have the right to access pursuant to the terms of this Agreement, a subscription service. This Agreement includes and incorporates the webpage Order Form with which you purchased the Services and any subsequent Order Forms (submitted in written or electronic form). By accessing or using the Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services.
1.2 “Customer” means the customer that has signed up for the Services and agreed to the terms of this Agreement.
1.3 “Customer Data” means any information or data about Customer or Users (and its and their staff, customers or suppliers, as applicable) that is supplied to SQL Powerhouse by or on behalf of Customer or any User in connection with the Services, or which SQL Powerhouse is required to access, generate, process, store or transmit pursuant to this Agreement, including (without limitation) information about Customer’s and Users’ respective devices, computers and use of the Services. Customer Data shall not be deemed to include any Performance Data.
1.4 “Customer Personal Data” means any Customer Data that is personal data (as defined under the applicable Data Protection Laws).
1.5 “Data Protection Laws” means all data protection and privacy laws, rules and regulations applicable to a party and binding on that party in the performance of its obligations under this Agreement, including, where applicable, EC Directive 2002/58/EC and Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
1.6 “Documentation” means guides, instructions, policies and reference materials provided to Customer by SQL Powerhouse in connection with the Services, including the documentation located at sqlpowerhouse.com, which SQL Powerhouse may amend from time to time.
1.7 “SQL Powerhouse Admin Panel” means the web portal currently accessible at https://sqlpowerhouse.com/account/login/, which allows Customer’s internally appointed administrator(s) of the Services to, among other options, enroll and activate Users, issue and manage SMS passcodes and bypass codes, and manage mobile devices (as applicable to the Services set forth on the applicable Order Form).
1.8 “SQL Powerhouse mobile app” means all SQL Powerhouse proprietary mobile applications used in providing the Services, and any updates, fixes or patches developed from time to time.
1.9 “Fees” means the applicable fees as set forth on the Order Form.
1.10 “Free Services” means those aspects of the Services that are free and do not require payment, such as beta features or functionality or, in the case of a free trial, the Services themselves.
1.11 “Hardware Tokens” means hardware security tokens purchased by Customer under an Order Form.
1.12 “Intellectual Property Rights” means all patents, registered designs, unregistered designs, design rights, utility models, semiconductor topography rights, database rights, copyright and other similar statutory rights, trade mark, service mark and any know how relating to algorithms, drawings, tests, reports and procedures, models, manuals, formulae, methods, processes and the like (including applications for any of the preceding rights) or any other intellectual or industrial property rights of whatever nature in each case in any part of the world and whether or not registered or registerable, for the full period and all extensions and renewals where applicable.
1.13 “Order Form(s)” means the invoice or other forms from SQL Powerhouse for the initial order for the Service, and any subsequent invoice or other forms from SQL Powerhouse (submitted in written form or online), specifying, among other things, the maximum number of Users, initial Term, purchase of any Hardware Tokens, Fees, Telephony Credits (if any), and such other charges and terms as agreed between the parties.
1.14 “Payment Schedule” means the schedule selected by Customer for payment of Fees (on either an order webpage or an attached Order Form), which may be either monthly by credit card or annually or multi-year and invoiced in advance, with payment due within thirty (30) days of receipt of invoice.
1.15 “Performance Data” means any and all aggregate, de-identified data relating to the access or use of the Services by or on behalf of Customer or any User, including any performance, analytics or statistical data, that SQL Powerhouse may collect from time to time.
1.16 “Service Level Agreement” or “SLA” means the description of the availability of the Services located at: https://sqlpowerhouse.com.
1.17 “Services” means the products and services that are ordered by or made available to Customer under a free trial or an Order Form, including, where applicable, the Software, Hardware Tokens and services using only the SQL Powerhouse mobile app, and made available online by SQL Powerhouse, including associated offline components, as described in the Documentation.
1.18 “Software” means (i) SQL Powerhouse proprietary software (including the SQL Powerhouse mobile app), and (ii) open source software used by SQL Powerhouse in providing the Services which integrates with Customer’s network or application, including SSL or other VPN, Unix operating system, Microsoft application, or web application, as provided in the Documentation and any updates, fixes or patches developed from time to time.
1.19 “Telephony Credits” mean credits for Customer’s Users to provide authentication by telephone or SMS.
1.20 “Term” means the subscription term indicated on the Order Form and any subsequent renewal terms.
1.21 “User” means any user of the Services whom Customer may authorize to enroll to use the Services under the terms of this Agreement.
2.2 The Services and SLA are subject to modification from time to time at SQL Powerhouse’s sole discretion, provided the modifications do not materially diminish the functionality of the Services provided by SQL Powerhouse and the Services continue to perform according to the description of the Services specified in Section 2.3 in all material aspects. Customer shall have the right to terminate the Agreement pursuant to Section 10.2 without any penalty if (i) a material modification to the Services or the SLA is made which materially diminishes the functionality of the Services or materially diminishes the SLA, (ii) SQL Powerhouse has not obtained Customer’s consent for such modifications and (iii) SQL Powerhouse does not provide a remedy in the cure period stated in Section 10.2.
2.3 SQL Powerhouse will make the Services available and the Services will perform substantially in accordance with the description of the services found at https://sqlpowerhouse.com Notwithstanding the foregoing, SQL Powerhouse reserves the right to suspend Customer’s (or any User’s) access to the Services immediately (i) in the event that Customer breaches Section 4 or Section 7 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect customers or Users.
3.2 Customer shall not provide any infringing, offensive, fraudulent or illegal content in connection with the Services, and Customer represents and warrants that any content it provides will not violate any Intellectual Property Rights of any third party. SQL Powerhouse reserves the right, in its sole discretion, to delete or disable any content submitted by Customer that may be infringing, offensive, fraudulent or illegal.
3.3 Use of the Services may require Users to install SQL Powerhouse mobile app on their mobile devices, which use shall be subject to this Agreement. Customer’s use of third party products or services that are not licensed to Customer directly by SQL Powerhouse (“Third Party Services”) shall be governed solely by the terms and conditions applicable to such Third Party Services, as agreed to between Customer and the third party. SQL Powerhouse does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. Customer agrees to waive any claim against SQL Powerhouse with respect to any Third Party Services.
3.4 Customer acknowledges that the Services will require Users to share with SQL Powerhouse certain information which may include personal information regarding Users (such as usernames, passwords, email address and/or phone number) solely for the purposes of providing and improving the Services. Prior to authorizing an individual to become a User, Customer is fully responsible for obtaining the consent of that individual, in accordance with Applicable Law, to the use of his/her information by SQL Powerhouse, which use is described in SQL Powerhouse’s Services Privacy Notice. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become a User.
3.5 Customer will be fully responsible for Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by Customer. SQL Powerhouse’s relationship is with Customer and not individual Users or third parties using the Services through Customer, and Customer will address all claims raised by its Users, and third parties using the Services through Customer, directly with SQL Powerhouse. Customer must ensure that all third parties that utilize the Services through Customer agree (a) to use the Services in full compliance with this Agreement, and (b) to the extent permitted by Applicable Law, to waive any and all claims directly against SQL Powerhouse related to the Services.
6.2 The Receiving Party agrees: (i) not to disclose Confidential Information to any third person other than those of its employees, contractors, advisors, investors and potential acquirers (“Representatives”) with a need to have access thereto and who have entered into non-disclosure and non-use agreements applicable to the Disclosing Party’s Confidential Information, and (ii) to use such Confidential Information solely as reasonably required in connection with the Services and/or this Agreement. Each party agrees to be responsible for any breach of this Agreement caused by any of its Representatives. The Receiving Party further agrees to take the same security precautions to protect against unauthorized disclosure or unauthorized use of such Confidential Information of the Disclosing Party that the party takes with its own confidential or proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Each party acknowledges that the use of such precautions is not a guarantee against unauthorized disclosure or use. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information as required in response to a request under applicable open records laws or pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party reasonable prior notice to contest such disclosure. For the avoidance of doubt, Customer acknowledges that SQL Powerhouse utilizes the services of, and Customer may request additional services from, certain third parties in connection with SQL Powerhouse’s provision of the Services (such as data hosting and telephony service providers and Customer’s Third Party Services providers) and such third parties will have access to Customer’s Confidential Information, including Customer Data in accordance with this Agreement. The parties agree that Performance Data is not Confidential Information and will not be subject to any confidentiality restrictions or obligations.
6.3 Each party agrees that, upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party, or provide written certification of the destruction of, all Confidential Information of the Disclosing Party, including all Confidential Information contained in internal documents, without retaining any copy, extract or summary of any part thereof. Notwithstanding the foregoing, a Receiving Party may retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course internal document retention and backup requirements and procedures, provided that such Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.
6.4 Customer acknowledges that SQL Powerhouse does not wish to receive any Confidential Information from Customer that is not necessary for SQL Powerhouse to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, SQL Powerhouse may reasonably presume that any unrelated information received from Customer is not confidential or Confidential Information, unless such information is marked as “Confidential.”
8.2 Customer may enable integrations between the Services and certain of its Third Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third Party Services, Customer is expressly instructing SQL Powerhouse to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing any and all instructions to the Third Party Service provider about the use and protection of Customer Data. SQL Powerhouse and Third Party Service providers are not subprocessors of each other.
8.3 As the data controller of Customer Personal Data, Customer represents and warrants to SQL Powerhouse that its provision of personal data to SQL Powerhouse and instructions for processing such personal data in connection with the Services shall comply with all Data Protection Laws.
8.4 In accordance with applicable Data Protection Laws, SQL Powerhouse shall take all commercially reasonable measures to protect the security and confidentiality of Customer Personal Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. SQL Powerhouse will provide Customer with its security policy, upon request, that sets forth the technical specifications and the detailed measures taken to protect the security and confidentiality of Customer Personal Data.
8.5 Customer may, upon at least thirty (30) days prior notice, and no more than once per 12 month period, appoint an independent third party auditor to physically inspect and audit, at Customer’s sole cost and expense, any facilities owned or controlled by SQL Powerhouse in which Customer Personal Data is processed or stored, provided that such inspection: (i) shall occur on a mutually agreed upon date during SQL Powerhouse’s regular business hours; (ii) does not interfere with any of SQL Powerhouse’s business operations; and, (iii) does not, in SQL Powerhouse’s reasonable discretion, create any risk to the confidentiality, integrity, or availability of any data stored or processed by SQL Powerhouse. Prior to any audit, Customer, and any appointed auditor, must enter into a nondisclosure and confidentiality agreement as may be required by SQL Powerhouse.
10.2 In the event of any material breach of this Agreement by either party (other than Customer’s payment obligations), the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. If Customer fails to pay any Fees or other amounts in the applicable Order Form in accordance with the Payment Schedule, SQL Powerhouse may terminate this Agreement prior to the end of the Term by giving five (5) business days prior written notice to Customer; provided, however, that this Agreement will not terminate if Customer has paid all Fees and other amounts in the applicable Order Form prior to the expiration of such five business-day period.
10.3 Either party may terminate this Agreement, without notice, (i) upon the institution or if a petition is filed, notice is given, a resolution is passed or an order is made, in each case by or against the other party under Applicable Law relating to insolvency, administration, liquidation, receivership, bankruptcy or any other winding up proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors or making a voluntary arrangement with its creditors, (iii) upon the other party’s dissolution or ceasing, or threatening to cease to do business or (iv) if any event occurs, or proceeding is instituted, with respect to the other party that has the equivalent or similar effect to any of the events mentioned in Section 10.3(i) through (iii). Notwithstanding anything in this Agreement to the contrary, SQL Powerhouse may, without penalty or liability and with or without notice, modify or discontinue its provision of Free Services at any time and to the extent Customer is only using Free Services immediately terminate this Agreement.
10.4 The Sections of this Agreement which by their nature should survive termination or expiration of this Agreement, including but not limited to Sections 3 through 14, will survive termination or expiration of this Agreement. No refund of Fees shall be due in any amount on account of termination by SQL Powerhouse pursuant to this Section 10. In the event of termination by Customer pursuant to this Section 10, Customer shall be entitled as its sole and exclusive remedy, to receive a refund of any pre-paid subscription Fees paid by Customer to SQL Powerhouse for Services not rendered as of the termination date. When this Agreement expires or terminates, SQL Powerhouse shall cease providing the Services to Customer.
11.2 For Customers that have purchased Hardware Tokens as part of the Services, SQL Powerhouse warrants to Customer only that Hardware Tokens will be free of hidden defects in material and workmanship at the time of sale and for a period of six (6) months thereafter. This warranty is limited to replacement of defective Hardware Tokens. This Hardware Token warranty is Customer’s exclusive remedy for defective Hardware Tokens. This provision does not apply to Customers who use only Free Services.
11.3 EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 11, THE SERVICES AND SQL POWERHOUSE CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. SQL POWERHOUSE HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
12.2 SUBJECT TO SECTION 12.1, IN NO EVENT WILL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE TO THE OTHER PARTY (OR ANY PERSON CLAIMING THROUGH SUCH PARTY) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT) OR (II) LOST BUSINESS OR (III) LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) BREACH OF STATUTORY DUTY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
12.3 SUBJECT TO SECTION 12.1, THE MAXIMUM LIABILITY OF EITHER PARTY OR THEIR SUPPLIERS FOR ANY AND ALL CLAIMS UNDER AN APPLICABLE ORDER FORM, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR TO BE PAID TO SQL POWERHOUSE UNDER SUCH ORDER FORM DURING THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT SUCH CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13.2 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any SQL Powerhouse employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will promptly notify SQL Powerhouse.
13.3 Commercial Software. The Services (including the Software) are “commercial items” as that term is defined at FAR 2.101. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. This Section 13.3 is in lieu of, and supersedes, any other FAR, DFARS, DEAR or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. Capitalized terms used in this Section are defined in the applicable FAR or DFARs.
14.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with SQL Powerhouse’s prior written consent, which shall not be unreasonably withheld. SQL Powerhouse may transfer and assign any of its rights and obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
14.3 No Third Party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement. No entities other than SQL Powerhouse and Customer may terminate, rescind or agree to any modification, waiver or settlement with respect to this Agreement.
14.4 Entire Agreement; Amendment. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers, amendments and modifications must be in writing signed by the party against whom the waiver, amendment or modification is to be enforced; however, there will be no force or effect given to any different or additional terms contained in any purchase order or other vendor form issued by Customer, even if signed by SQL Powerhouse after the date hereof. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SQL Powerhouse in any respect whatsoever.
14.5 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. SQL Powerhouse may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://sqlpowerhouse.com.
14.6 Force Majeure. Any delay or failure in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood or any other event beyond the reasonable control of a party, provided that such party promptly notifies the other party thereof and uses reasonable efforts to resume performance as soon as possible.
14.7 Governing Law; Arbitration. This Agreement will be governed by the laws of Denmark. without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Denmark:
14.8 Venue; Prevailing Party. The federal and state courts sitting in Denmark. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Notwithstanding the foregoing, each party shall have the right to commence and prosecute any action for injunctive relief before any court of competent jurisdiction. In any arbitration, action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
14.9 Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by SQL Powerhouse. During the Term and for thirty (30) days thereafter, Customer grants SQL Powerhouse the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on SQL Powerhouse’s website or other marketing or advertising materials.
These Service Terms and Conditions (“Agreement”) constitute a contract between SOAK A/S, Foldegade 33, 7100 Vejle, Denmark (“SQL Powerhouse”, and you. SQL Powerhouse wishes to provide and you wish to have the right to access pursuant to the terms of this Agreement, a subscription service. This Agreement includes and incorporates the webpage Order Form with which you purchased the Services and any subsequent Order Forms (submitted in written or electronic form). By accessing or using the Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services.
- DEFINITIONS
1.2 “Customer” means the customer that has signed up for the Services and agreed to the terms of this Agreement.
1.3 “Customer Data” means any information or data about Customer or Users (and its and their staff, customers or suppliers, as applicable) that is supplied to SQL Powerhouse by or on behalf of Customer or any User in connection with the Services, or which SQL Powerhouse is required to access, generate, process, store or transmit pursuant to this Agreement, including (without limitation) information about Customer’s and Users’ respective devices, computers and use of the Services. Customer Data shall not be deemed to include any Performance Data.
1.4 “Customer Personal Data” means any Customer Data that is personal data (as defined under the applicable Data Protection Laws).
1.5 “Data Protection Laws” means all data protection and privacy laws, rules and regulations applicable to a party and binding on that party in the performance of its obligations under this Agreement, including, where applicable, EC Directive 2002/58/EC and Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).
1.6 “Documentation” means guides, instructions, policies and reference materials provided to Customer by SQL Powerhouse in connection with the Services, including the documentation located at sqlpowerhouse.com, which SQL Powerhouse may amend from time to time.
1.7 “SQL Powerhouse Admin Panel” means the web portal currently accessible at https://sqlpowerhouse.com/account/login/, which allows Customer’s internally appointed administrator(s) of the Services to, among other options, enroll and activate Users, issue and manage SMS passcodes and bypass codes, and manage mobile devices (as applicable to the Services set forth on the applicable Order Form).
1.8 “SQL Powerhouse mobile app” means all SQL Powerhouse proprietary mobile applications used in providing the Services, and any updates, fixes or patches developed from time to time.
1.9 “Fees” means the applicable fees as set forth on the Order Form.
1.10 “Free Services” means those aspects of the Services that are free and do not require payment, such as beta features or functionality or, in the case of a free trial, the Services themselves.
1.11 “Hardware Tokens” means hardware security tokens purchased by Customer under an Order Form.
1.12 “Intellectual Property Rights” means all patents, registered designs, unregistered designs, design rights, utility models, semiconductor topography rights, database rights, copyright and other similar statutory rights, trade mark, service mark and any know how relating to algorithms, drawings, tests, reports and procedures, models, manuals, formulae, methods, processes and the like (including applications for any of the preceding rights) or any other intellectual or industrial property rights of whatever nature in each case in any part of the world and whether or not registered or registerable, for the full period and all extensions and renewals where applicable.
1.13 “Order Form(s)” means the invoice or other forms from SQL Powerhouse for the initial order for the Service, and any subsequent invoice or other forms from SQL Powerhouse (submitted in written form or online), specifying, among other things, the maximum number of Users, initial Term, purchase of any Hardware Tokens, Fees, Telephony Credits (if any), and such other charges and terms as agreed between the parties.
1.14 “Payment Schedule” means the schedule selected by Customer for payment of Fees (on either an order webpage or an attached Order Form), which may be either monthly by credit card or annually or multi-year and invoiced in advance, with payment due within thirty (30) days of receipt of invoice.
1.15 “Performance Data” means any and all aggregate, de-identified data relating to the access or use of the Services by or on behalf of Customer or any User, including any performance, analytics or statistical data, that SQL Powerhouse may collect from time to time.
1.16 “Service Level Agreement” or “SLA” means the description of the availability of the Services located at: https://sqlpowerhouse.com.
1.17 “Services” means the products and services that are ordered by or made available to Customer under a free trial or an Order Form, including, where applicable, the Software, Hardware Tokens and services using only the SQL Powerhouse mobile app, and made available online by SQL Powerhouse, including associated offline components, as described in the Documentation.
1.18 “Software” means (i) SQL Powerhouse proprietary software (including the SQL Powerhouse mobile app), and (ii) open source software used by SQL Powerhouse in providing the Services which integrates with Customer’s network or application, including SSL or other VPN, Unix operating system, Microsoft application, or web application, as provided in the Documentation and any updates, fixes or patches developed from time to time.
1.19 “Telephony Credits” mean credits for Customer’s Users to provide authentication by telephone or SMS.
1.20 “Term” means the subscription term indicated on the Order Form and any subsequent renewal terms.
1.21 “User” means any user of the Services whom Customer may authorize to enroll to use the Services under the terms of this Agreement.
- SERVICES FOR CUSTOMER; SQL POWERHOUSE OBLIGATIONS
2.2 The Services and SLA are subject to modification from time to time at SQL Powerhouse’s sole discretion, provided the modifications do not materially diminish the functionality of the Services provided by SQL Powerhouse and the Services continue to perform according to the description of the Services specified in Section 2.3 in all material aspects. Customer shall have the right to terminate the Agreement pursuant to Section 10.2 without any penalty if (i) a material modification to the Services or the SLA is made which materially diminishes the functionality of the Services or materially diminishes the SLA, (ii) SQL Powerhouse has not obtained Customer’s consent for such modifications and (iii) SQL Powerhouse does not provide a remedy in the cure period stated in Section 10.2.
2.3 SQL Powerhouse will make the Services available and the Services will perform substantially in accordance with the description of the services found at https://sqlpowerhouse.com Notwithstanding the foregoing, SQL Powerhouse reserves the right to suspend Customer’s (or any User’s) access to the Services immediately (i) in the event that Customer breaches Section 4 or Section 7 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect customers or Users.
- CUSTOMER RESPONSIBILITIES
3.2 Customer shall not provide any infringing, offensive, fraudulent or illegal content in connection with the Services, and Customer represents and warrants that any content it provides will not violate any Intellectual Property Rights of any third party. SQL Powerhouse reserves the right, in its sole discretion, to delete or disable any content submitted by Customer that may be infringing, offensive, fraudulent or illegal.
3.3 Use of the Services may require Users to install SQL Powerhouse mobile app on their mobile devices, which use shall be subject to this Agreement. Customer’s use of third party products or services that are not licensed to Customer directly by SQL Powerhouse (“Third Party Services”) shall be governed solely by the terms and conditions applicable to such Third Party Services, as agreed to between Customer and the third party. SQL Powerhouse does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. Customer agrees to waive any claim against SQL Powerhouse with respect to any Third Party Services.
3.4 Customer acknowledges that the Services will require Users to share with SQL Powerhouse certain information which may include personal information regarding Users (such as usernames, passwords, email address and/or phone number) solely for the purposes of providing and improving the Services. Prior to authorizing an individual to become a User, Customer is fully responsible for obtaining the consent of that individual, in accordance with Applicable Law, to the use of his/her information by SQL Powerhouse, which use is described in SQL Powerhouse’s Services Privacy Notice. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become a User.
3.5 Customer will be fully responsible for Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by Customer. SQL Powerhouse’s relationship is with Customer and not individual Users or third parties using the Services through Customer, and Customer will address all claims raised by its Users, and third parties using the Services through Customer, directly with SQL Powerhouse. Customer must ensure that all third parties that utilize the Services through Customer agree (a) to use the Services in full compliance with this Agreement, and (b) to the extent permitted by Applicable Law, to waive any and all claims directly against SQL Powerhouse related to the Services.
- RESTRICTIONS
- PAYMENT OF FEES
- CONFIDENTIALITY
6.2 The Receiving Party agrees: (i) not to disclose Confidential Information to any third person other than those of its employees, contractors, advisors, investors and potential acquirers (“Representatives”) with a need to have access thereto and who have entered into non-disclosure and non-use agreements applicable to the Disclosing Party’s Confidential Information, and (ii) to use such Confidential Information solely as reasonably required in connection with the Services and/or this Agreement. Each party agrees to be responsible for any breach of this Agreement caused by any of its Representatives. The Receiving Party further agrees to take the same security precautions to protect against unauthorized disclosure or unauthorized use of such Confidential Information of the Disclosing Party that the party takes with its own confidential or proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. Each party acknowledges that the use of such precautions is not a guarantee against unauthorized disclosure or use. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document: (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information as required in response to a request under applicable open records laws or pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party reasonable prior notice to contest such disclosure. For the avoidance of doubt, Customer acknowledges that SQL Powerhouse utilizes the services of, and Customer may request additional services from, certain third parties in connection with SQL Powerhouse’s provision of the Services (such as data hosting and telephony service providers and Customer’s Third Party Services providers) and such third parties will have access to Customer’s Confidential Information, including Customer Data in accordance with this Agreement. The parties agree that Performance Data is not Confidential Information and will not be subject to any confidentiality restrictions or obligations.
6.3 Each party agrees that, upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party, or provide written certification of the destruction of, all Confidential Information of the Disclosing Party, including all Confidential Information contained in internal documents, without retaining any copy, extract or summary of any part thereof. Notwithstanding the foregoing, a Receiving Party may retain copies of Confidential Information solely to the extent necessary for purposes of such party’s ordinary course internal document retention and backup requirements and procedures, provided that such Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.
6.4 Customer acknowledges that SQL Powerhouse does not wish to receive any Confidential Information from Customer that is not necessary for SQL Powerhouse to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, SQL Powerhouse may reasonably presume that any unrelated information received from Customer is not confidential or Confidential Information, unless such information is marked as “Confidential.”
- INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP
- DATA PROTECTION
8.2 Customer may enable integrations between the Services and certain of its Third Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third Party Services, Customer is expressly instructing SQL Powerhouse to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing any and all instructions to the Third Party Service provider about the use and protection of Customer Data. SQL Powerhouse and Third Party Service providers are not subprocessors of each other.
8.3 As the data controller of Customer Personal Data, Customer represents and warrants to SQL Powerhouse that its provision of personal data to SQL Powerhouse and instructions for processing such personal data in connection with the Services shall comply with all Data Protection Laws.
8.4 In accordance with applicable Data Protection Laws, SQL Powerhouse shall take all commercially reasonable measures to protect the security and confidentiality of Customer Personal Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. SQL Powerhouse will provide Customer with its security policy, upon request, that sets forth the technical specifications and the detailed measures taken to protect the security and confidentiality of Customer Personal Data.
8.5 Customer may, upon at least thirty (30) days prior notice, and no more than once per 12 month period, appoint an independent third party auditor to physically inspect and audit, at Customer’s sole cost and expense, any facilities owned or controlled by SQL Powerhouse in which Customer Personal Data is processed or stored, provided that such inspection: (i) shall occur on a mutually agreed upon date during SQL Powerhouse’s regular business hours; (ii) does not interfere with any of SQL Powerhouse’s business operations; and, (iii) does not, in SQL Powerhouse’s reasonable discretion, create any risk to the confidentiality, integrity, or availability of any data stored or processed by SQL Powerhouse. Prior to any audit, Customer, and any appointed auditor, must enter into a nondisclosure and confidentiality agreement as may be required by SQL Powerhouse.
- INDEMNIFICATION
- TERM; TERMINATION
10.2 In the event of any material breach of this Agreement by either party (other than Customer’s payment obligations), the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. If Customer fails to pay any Fees or other amounts in the applicable Order Form in accordance with the Payment Schedule, SQL Powerhouse may terminate this Agreement prior to the end of the Term by giving five (5) business days prior written notice to Customer; provided, however, that this Agreement will not terminate if Customer has paid all Fees and other amounts in the applicable Order Form prior to the expiration of such five business-day period.
10.3 Either party may terminate this Agreement, without notice, (i) upon the institution or if a petition is filed, notice is given, a resolution is passed or an order is made, in each case by or against the other party under Applicable Law relating to insolvency, administration, liquidation, receivership, bankruptcy or any other winding up proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors or making a voluntary arrangement with its creditors, (iii) upon the other party’s dissolution or ceasing, or threatening to cease to do business or (iv) if any event occurs, or proceeding is instituted, with respect to the other party that has the equivalent or similar effect to any of the events mentioned in Section 10.3(i) through (iii). Notwithstanding anything in this Agreement to the contrary, SQL Powerhouse may, without penalty or liability and with or without notice, modify or discontinue its provision of Free Services at any time and to the extent Customer is only using Free Services immediately terminate this Agreement.
10.4 The Sections of this Agreement which by their nature should survive termination or expiration of this Agreement, including but not limited to Sections 3 through 14, will survive termination or expiration of this Agreement. No refund of Fees shall be due in any amount on account of termination by SQL Powerhouse pursuant to this Section 10. In the event of termination by Customer pursuant to this Section 10, Customer shall be entitled as its sole and exclusive remedy, to receive a refund of any pre-paid subscription Fees paid by Customer to SQL Powerhouse for Services not rendered as of the termination date. When this Agreement expires or terminates, SQL Powerhouse shall cease providing the Services to Customer.
- WARRANTIES AND DISCLAIMER OF ADDITIONAL WARRANTIES
11.2 For Customers that have purchased Hardware Tokens as part of the Services, SQL Powerhouse warrants to Customer only that Hardware Tokens will be free of hidden defects in material and workmanship at the time of sale and for a period of six (6) months thereafter. This warranty is limited to replacement of defective Hardware Tokens. This Hardware Token warranty is Customer’s exclusive remedy for defective Hardware Tokens. This provision does not apply to Customers who use only Free Services.
11.3 EXCEPT AS EXPLICITLY PROVIDED IN THIS SECTION 11, THE SERVICES AND SQL POWERHOUSE CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. SQL POWERHOUSE HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
12.2 SUBJECT TO SECTION 12.1, IN NO EVENT WILL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE TO THE OTHER PARTY (OR ANY PERSON CLAIMING THROUGH SUCH PARTY) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT) OR (II) LOST BUSINESS OR (III) LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) BREACH OF STATUTORY DUTY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
12.3 SUBJECT TO SECTION 12.1, THE MAXIMUM LIABILITY OF EITHER PARTY OR THEIR SUPPLIERS FOR ANY AND ALL CLAIMS UNDER AN APPLICABLE ORDER FORM, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR TO BE PAID TO SQL POWERHOUSE UNDER SUCH ORDER FORM DURING THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT SUCH CLAIM IS FIRST ASSERTED. THE FOREGOING LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- GOVERNMENT MATTERS
13.2 Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any SQL Powerhouse employee or agent in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will promptly notify SQL Powerhouse.
13.3 Commercial Software. The Services (including the Software) are “commercial items” as that term is defined at FAR 2.101. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. This Section 13.3 is in lieu of, and supersedes, any other FAR, DFARS, DEAR or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. Capitalized terms used in this Section are defined in the applicable FAR or DFARs.
- MISCELLANEOUS
14.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with SQL Powerhouse’s prior written consent, which shall not be unreasonably withheld. SQL Powerhouse may transfer and assign any of its rights and obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
14.3 No Third Party Beneficiaries. Nothing in this Agreement shall confer, or is intended to confer, on any third party any benefit or the right to enforce any term of this Agreement. No entities other than SQL Powerhouse and Customer may terminate, rescind or agree to any modification, waiver or settlement with respect to this Agreement.
14.4 Entire Agreement; Amendment. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers, amendments and modifications must be in writing signed by the party against whom the waiver, amendment or modification is to be enforced; however, there will be no force or effect given to any different or additional terms contained in any purchase order or other vendor form issued by Customer, even if signed by SQL Powerhouse after the date hereof. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SQL Powerhouse in any respect whatsoever.
14.5 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. SQL Powerhouse may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://sqlpowerhouse.com.
14.6 Force Majeure. Any delay or failure in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood or any other event beyond the reasonable control of a party, provided that such party promptly notifies the other party thereof and uses reasonable efforts to resume performance as soon as possible.
14.7 Governing Law; Arbitration. This Agreement will be governed by the laws of Denmark. without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Denmark:
14.8 Venue; Prevailing Party. The federal and state courts sitting in Denmark. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Notwithstanding the foregoing, each party shall have the right to commence and prosecute any action for injunctive relief before any court of competent jurisdiction. In any arbitration, action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
14.9 Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by SQL Powerhouse. During the Term and for thirty (30) days thereafter, Customer grants SQL Powerhouse the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on SQL Powerhouse’s website or other marketing or advertising materials.