ThreatBlockr® MSP Terms of Service
Date Published: September 19, 2022
Date Published: September 19, 2022
IMPORTANT: UNLESS OTHERWISE AGREED IN WRITING SIGNED BY BOTH PARTIES, THIS MANAGED SERVICE PROVIDER AGREEMENT (THE “AGREEMENT”) GOVERNS PARTICIPATION IN THE THREATBLOCKR, INC. (“THREATBLOCKR”) MANAGED SERVICE PROVIDER PROGRAM BY THE ENTITY (“MSP”) REQUESTING PARTICIPATION IN THE PROGRAM, MSP’S PURCHASE OF PRODUCTS FROM THREATBLOCKR IN CONNECTION WITH THE INTEGRATED SERVICES, AND MSP’S LICENSE OF THREATBLOCKR PRODUCTS AS DESCRIBED BELOW. BY SUBMITTING ORDERS FOR PRODUCT, MSP IS BINDING ITSELF TO ALL TERMS OF THIS AGREEMENT.
1. DEFFINITIONS. The following capitalized terms shall have the meanings ascribed to them in this section.
1.1 “Customer” means an entity that purchases Integrated Services from
1.2 “Documentation” means the end user documentation furnished to MSP by ThreatBlockr for the Products.
1.3 “End User” means a Customer or other entity that uses one or more Integrated Services for or on behalf of such Customer.
1.4 “EULA” means the end user license agreement that governs the End User’s use of the software embodied within the Product and sets forth the Limited Warranty and support and maintenance terms for the Product.
1.5 “Integrated Services” means any and all managed services that incorporate or include one or more MSP Components and the Product. Integrated Services may be identified in Schedule A and may be modified from time to time by the parties’ written agreement.
1.6 “Limited Warranty” has the meaning set forth in Section 10.2.
1.7 “Marketing Materials” means any marketing collateral relating to the Products that ThreatBlockr may furnish to MSP
1.8 “MSP Components” means any and all components of the Integrated Service other than the Product.
1.9 “Partner Program” means the Partner Program guidelines as posted on ThreatBlockr’s partner portal site, as implemented in ThreatBlockr’s reasonable discretion.
1.10 “Product” means ThreatBlockr’s Threat Intelligence Gateway product and any other products that ThreatBlockr, in its discretion, makes available to MSP under this Agreement.
1.11 “Product Data” means data generated by, or necessary for, the ordinary use of the Product.
1.12 “Support Services” means the standard Tier 2 and Tier 3 maintenance and support services for the Products made available directly to MSP by ThreatBlockr or its authorized support partners, as may be described in the EULA and the Partner Program.
1.13. “ThreatBlockr Marks” means any ThreatBlockr trademark or logo that ThreatBlockr may provide to MSP for use in connection with this Agreement.
2. LICENSE. Subject to the terms and conditions of this Agreement, ThreatBlockr hereby grants to MSP a non-exclusive license to use the Product, as part of the Integrated Service, for the benefit of Customers. Without the prior written consent of ThreatBlockr, MSP may not distribute the Product for resale and may not distribute the Product on a standalone basis. Subject to and conditioned on MSP’s compliance with the terms and conditions of this Agreement, Licensor hereby grants MSP a limited, non-exclusive, non-transferable, and non-sublicensable license during the term of this Agreement solely to: (a) reproduce and use the Product APIs and software in object code form only, for purposes of developing Integrated Services that incorporate or are otherwise bundled with the Product; (b) demonstrate, market, and use the Product on behalf of Customers in accordance with the EULA as so incorporated in or bundled with the Integrated Services; (c) use the Product internally for testing, servicing, and supporting the Integrated Services, and reproduce the Product software in the quantities and to the extent necessary for these purposes; and (d) incorporate the Documentation, in whole or in part, into the documentation for the Integrated Services, reproduce such quantities of the Documentation as are necessary solely for purposes of such incorporation, and distribute to Customers such Documentation as incorporated in the Integrated Services documentation (each of the foregoing items, (a) through (d), a “Permitted Purpose“).
3. THREATBLOCKR CUSTOMERS; PARTNER PROGRAM
3.1. Notification. In the event that ThreatBlockr provides notice to MSP that a potential MSP Integrated Services customer is a then-current customer of ThreatBlockr, MSP shall cease efforts to market or sell Integrated Services to such potential customer. In the event that MSP provides notice to ThreatBlockr that a potential Product customer is a then-current MSP Integrated Services Customer, ThreatBlockr shall cease efforts to market or sell Products to such potential customer.
3.2. Partner Program. MSP is a non-exclusive participant in the Partner Program, which may be modified or terminated by ThreatBlockr at its discretion. MSP agrees to comply with the guidelines and policies of the Partner Program as may be provided by ThreatBlockr to MSP from time to time. which is incorporated herein by reference. Modifications or terminations of the Partner Program will be effective as of the later of: written notice to MSP or such time designated by ThreatBlockr at its discretion. MSP may withdraw from the Partner Program upon written notice to ThreatBlockr.
3.3. Feedback. MSP may communicate to ThreatBlockr suggestions of modifications, design changes or improvements of the Products made by any End User or employee of MSP (collectively, “Feedback”). ThreatBlockr shall own all right, title and interest in and to any such Feedback, and MSP hereby assigns all right, title, and interest in and to all Feedback to ThreatBlockr.
4. MSP OBLIGATIONS
4.1. Marketing and Promotion.
4.1.1. MSP will market and promote the Integrated Services to Customers in accordance with the terms of this Agreement and the Partner Program. From time to time, ThreatBlockr may provide MSP, at no cost, with reasonable quantities of Marketing Materials to enable MSP to market and promote the Products as part of the Integrated Services. MSP may not modify any such Marketing Materials without ThreatBlockr’s prior written consent.
4.1.2. MSP shall use its best efforts to effectively market, promote and sell the Integrated Services to its current and future Customers. As mutually agreed by the parties, MSP shall cooperate and participate in promotional, marketing, sales and advertising programs or efforts sponsored or initiated by ThreatBlockr.
4.2. Not-for-Resale Equipment.
4.2.1. MSP may purchase a limited number of NFR hardware devices (“NFR Equipment”) at a discount under the Partner Program for the purposes of internal use, demonstration, training, support, and/or marketing activities as set out in the published price list offered on ThreatBlockr’s partner portal site or as mutually agreed upon by the parties in writing. NFR Equipment may not be resold, exchanged, or otherwise transferred for any purpose.
4.2.2. MSP is granted at no cost a not for resale (“NFR”) license to ThreatBlockr software for the purposes of internal use, demonstration, training, support, and marketing activities for 90 days from the Effective Date. At the end of such 90 day period:
22.214.171.124. If MSP has generated $20,000 or more of annual recurring revenue (“ARR”) to ThreatBlockr during such 90 days, an NFR license will be granted at no cost for one year.
126.96.36.199. If MSP has generated less than $20,000 of ARR to ThreatBlockr during such 90 days, MSP may purchase an NFR license at a 50% discount from then current list price for one year.
4.2.3. At the end of the first one year NFR license period, and each one year NFR license period thereafter:
188.8.131.52. If MSP has generated greater than $50,000 of ARR to ThreatBlockr during such one year period, the NFR license will be renewed at no cost for one year.
184.108.40.206. If MSP has generated $1 – $50,000 of ARR to ThreatBlockr during such one year period, MSP may purchase an NFR license at a 50% discount off of then current list price for one year.
4.2.4. If MSP has not generated any ARR during such one year period, MSP will not be eligible for any NFR discount.
4.3. Training. MSP shall designate employees to participate, at MSP’s expense, in ThreatBlockr technical and sales training. ThreatBlockr will make the training services available virtually or at a location as mutually agreed. MSP will provide its sales and technical staff with reasonable resources required (primarily time) to obtain on-going product, sales and marketing training provided by ThreatBlockr’s technical, sales and marketing staff under the Partner Program.
4.4. Compliance with Laws and Business Conduct.
4.4.1. MSP will comply fully with all laws applicable to (i) the Products and Documentation, (ii) the sale or distribution of the Products, or (iii) MSP’s business activities. If MSP processes personal data provided by ThreatBlockr or provides personal data to ThreatBlockr, MSP shall not cause ThreatBlockr to breach any data protection law, and only process personal data provided by ThreatBlockr for the purposes which such data was provided.
4.4.2. MSP will: (i) not engage in deceptive, misleading or unethical practices; (ii) have and maintain written policies against corruption and provide appropriate training to its employees, contractors, and consultants regarding U.S. Foreign Corrupt Practices Act and similar laws in jurisdictions where MSP conducts business activities; (iii) conduct business in substantive compliance with ThreatBlockr’s partner code of conduct that reflects favorably on the Products and the good name, goodwill and reputation of ThreatBlockr; and (iv) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by ThreatBlockr.
4.4.3. MSP will at all times keep complete and accurate records pertaining to this Agreement, and its use of Products. All such records must be kept in accordance with generally accepted accounting practices and all applicable laws. ThreatBlockr reserves the right to require MSP to provide evidence of its compliance to inspect or audit, or to have a reasonably agreed upon third party inspect or audit such records to its verify compliance with this Agreement.
4.5. Packaging. MSP will distribute the Products unmodified and with all packaging and license agreements, limited warranty statements and proprietary rights statements intact as received from ThreatBlockr.
4.6. Notification. MSP will promptly notify ThreatBlockr of any claim or proceeding, or any claimed or suspected defects, relating to the Products of which MSP becomes aware.
4.7. Product Data. MSP shall not share Product Data relating to any Customer with any third parties other than Customers, or use such Product Data for any purpose other than providing Integrated Services to Customers.
4.8. Support. MSP shall provide Tier 1 support to Customers. ThreatBlockr will provide Support Services directly to MSP, but not to Customers.
5. INTELLECTUAL PROPERTY
5.1. General Restrictions. MSP acknowledges that the Product embodies valuable trade secrets of ThreatBlockr and its suppliers. Except as provided herein, MSP shall not: (i) alter or remove any of ThreatBlockr’s or its suppliers’ copyright, patent, or other proprietary rights notices or legends appearing on or in the Products; (ii) modify, adapt, alter, translate, or create derivative works of the Products; (iii) reverse-engineer the Products or reverse-compile, decompile, or attempt to derive the source code of any object code contained in any of the Products. The Products include software that is subject to the applicable EULA. MSP shall ensure that End Users are aware of the EULA, and that such End User will accept the EULA by way of shrink-wrap, click through, or other contract formation mechanisms. All such software is licensed and is not sold.
5.2. Trademark License. Subject to the terms and conditions of this Agreement, ThreatBlockr grants to MSP a nonexclusive, nontransferable, revocable license to reproduce the ThreatBlockr Marks in MSP’s marketing and promotional materials solely for the purpose of marketing the Products pursuant to this Agreement, provided that (i) MSP’s use of the ThreatBlockr Marks complies with the then-current ThreatBlockr trademark guidelines; and (ii) MSP’s use of the ThreatBlockr Marks is not misleading and does not imply that ThreatBlockr endorses MSP or any products or services offered by MSP other than the Products. MSP may not reproduce or use the ThreatBlockr Marks (or any other ThreatBlockr trademarks) other than as expressly provided in this section except as expressly approved by ThreatBlockr in writing (including electronic communication). MSP acknowledges ThreatBlockr’s proprietary rights in the ThreatBlockr Marks and agrees that any use thereof shall inure to the sole benefit of ThreatBlockr. MSP shall not incorporate any ThreatBlockr Marks into MSP’s trademarks, service marks, company names, Internet addresses, domain names, or any similar designations without ThreatBlockr’s prior written consent.
5.3. Ownership. As between MSP and ThreatBlockr, ThreatBlockr and its suppliers shall retain exclusive ownership of all worldwide intellectual property rights in and to the Products, the Documentation, the Marketing Materials, and any updates, upgrades, modifications, or enhancements thereto, and any derivative works thereof. There are no implied licenses in this Agreement, and ThreatBlockr reserves all rights not expressly granted under this Agreement.
6. ORDERING PROCESS
6.1. Ordering. MSP may order Products by submitting written purchase orders (“Orders”). All Orders shall refer to this Agreement and, at a minimum, shall specify the quantities of Products ordered the price and the term. All Orders shall be subject to acceptance by ThreatBlockr in its sole discretion. Any terms or conditions contained in Orders that are inconsistent with, or additions to, the terms of this Agreement are hereby expressly rejected, irrespective of whether ThreatBlockr accepts such Order. The term of each Product subscription purchased pursuant to this Agreement is as set forth in the Order.
6.2. Shipment. Shipping dates, if applicable, will be scheduled by ThreatBlockr in its sole discretion upon its acceptance of Orders from MSP. ThreatBlockr will process the documentation for shipment of hardware Product(s) to the destination specified by MSP in such Order, with all costs of freight, insurance, duty and documentation billed to and paid by MSP in accordance with Section 7. ThreatBlockr shall exercise its own discretion in selecting a carrier. Risk of loss of, and title to, hardware Products shall pass to MSP and delivery will have been deemed to have occurred upon delivery to the carrier. All sales made pursuant to Orders are final and nonrefundable. MSP or End User (as applicable) shall inspect all Products promptly upon receipt thereof and shall be deemed to accept such Products and waive all claims with regard to obvious defects and shipment errors, unless MSP provides ThreatBlockr with a rejection notice due to such defects and errors within five days after receipt. MSP will comply with ThreatBlockr’s standard RMA procedures in connection with any mis-shipment returns permitted hereunder.
7. PRICING AND PAYMENT
7.1. Product Pricing. Pricing for the Products is set forth in the applicable Order. Notwithstanding anything to the contrary in this Agreement, MSP will have the sole and exclusive right and ability to independently determine all prices that it charges to End Users.
7.2. Payment Terms. Subject to available credit, the terms of payment are net thirty (30) days from ThreatBlockr’s invoice date. Payments shall be made via wire transfer representing payment of the full amount for Products ordered. In the event credits are owed to MSP by ThreatBlockr, ThreatBlockr may issue credits against MSP’s account and offset against the next invoice. MSP may not deduct such credited amounts from, or offset such credited amounts against, any invoiced amounts due from MSP to ThreatBlockr without ThreatBlockr’s written approval. For any amount that is past due, ThreatBlockr reserves the right to impose upon MSP a late charge equal to one and one-half percent (1½%) per month (or the maximum legal rate in effect, whichever is less) of all outstanding amounts, accruing from the due date until final payment. The foregoing shall in no way limit any other remedy available to ThreatBlockr.
7.3. Taxes, Fees and Documentation. MSP agrees to pay, and to indemnify and hold ThreatBlockr harmless from, any sales, use, excise, withholding, import or export, value added or similar tax, not based on ThreatBlockr’s net income, and all government permit or license fees and all customs, duty, tariff and similar fees levied upon the delivery of Products, and any other deliverables or provision of services related thereto, and any costs associated with the collection or withholding thereof, including penalties and interest. Without limiting the foregoing, if any amount payable by MSP to ThreatBlockr under this Agreement should be subjected to any deduction or withholding on account of any tax or charge, MSP shall (i) effect such withholding, remit such amounts for the proper taxing authorities, and promptly furnish ThreatBlockr with tax receipts evidencing the payments of such amounts and (ii) pay to ThreatBlockr such additional amounts as may be required in order that the net amount received and retained by ThreatBlockr, after deduction or withholding of all related taxes and charges, free from liability for such deduction or withholding, shall be equal to the stated amount payable to ThreatBlockr pursuant to the terms of this Agreement.
8. CONFIDENTIALITY Confidential Information (“CI”) means any nonpublic information of a party (the “DP”), whether disclosed orally or in written or magnetic media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “RP”) knows or should have known is the confidential or proprietary information of the DP. Product Data is CI. Information will not constitute the other party’s CI if it (i) is already known by the RP without obligation of confidentiality; (ii) is independently developed by the RP without access to the CI; (iii) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. The RP shall not use or disclose any CI except as expressly authorized by this Agreement and shall protect the DP’s CI using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The RP shall take prompt and appropriate action to prevent unauthorized use or disclosure of the DP’s CI. If any CI must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the RP shall promptly notify the DP of the order or request and permit the DP (at its own expense) to seek an appropriate protective order.
9. TERM AND TERMINATION
9.1. Term. Unless terminated earlier as expressly permitted by this Agreement, the term of this Agreement shall begin on the Effective Date and continue for one year (the “Initial Term”). Upon expiration of the Initial Term, and subject to the Termination provisions of Section 9.2 below, the Agreement shall automatically renew for successive one-year terms.
9.2. Termination. Either party may terminate this Agreement (i) for convenience in its sole discretion, upon sixty (60) days’ prior written notice to the other party; (ii) upon written notice at any time if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice thereof; and (iii) immediately (and without a cure period) upon written notice (a) by ThreatBlockr if MSP materially breaches Section 2 (Appointment), Section 4.6 (Compliance with Laws and Business Conduct) or Section 5 (Intellectual Property); (b) by either party if the other party materially breaches Section 8 (Confidentiality); or (c) by either party if the other party becomes subject to appointment of a trustee or receiver for all or any part of its assets, becomes insolvent or bankrupt, or makes any assignment for the benefit of creditors. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OR PAYMENTS OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 9.
9.3. Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted to MSP hereunder to sell or renew Integrated Services shall immediately terminate and each party shall return or destroy all CI of the other party. Any Orders accepted by ThreatBlockr prior to the date of termination or expiration shall survive until the end of the term indicated in such Orders, and no refunds in respect of such Orders shall be given and no Orders may be canceled. MSP shall pay any amounts owed to ThreatBlockr at the time of termination, and ThreatBlockr shall pay to MSP any amounts owed for credits to MSP’s account, within fifteen (15) days. Sections 1, 4.2, 5.4, 7.2, 7.3, 8, 9.3, 10, 11, 12, 13, and any outstanding payment obligations shall survive any expiration or termination of this Agreement. All other rights and obligations will terminate.
10. REPRESENTATIONS AND WARRANTIES
10.1. Representations and Warranties. Each party hereby represents and warrants that (i) it has full power and authority to enter into and perform this Agreement; and (ii) none of its activities under this Agreement, is restricted by, contrary to, in conflict with, or ineffective under any law or regulation to which such party is subject.
10.2. End User Limited Product Warranty. ThreatBlockr provides a limited warranty to each End User for the Products (the “Limited Warranty”). This Limited Warranty is provided to the End User through the EULA. Certain exclusions and exceptions, as stated in the EULA, apply.
10.3. Disclaimers. EXCEPT AS SET FORTH IN THE THREATBLOCKR LIMITED WARRANTY TO THE END USER FOR THE PRODUCTS, DOCUMENTATION, MARKETING MATERIALS, AND RELATED SERVICES AND MATERIALS “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. MSP shall not make, or authorize any other person or entity to make, any representation or warranty whatsoever on behalf of ThreatBlockr with regard to the Products or Support Services.
10.4. Excluded Uses. THE THREATBLOCKR PRODUCTS ARE NOT DESIGNED OR INTENDED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS OR SERVICES COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE (THE “EXCLUDED USES”) AND MSP AGREES NOT TO MARKET OR RESELL THE PRODUCTS FOR SUCH EXCLUDED USES.
11.1. Indemnification by ThreatBlockr. ThreatBlockr will defend and hold MSP harmless against any loss, liability and expense (including reasonable attorneys’ fees) paid to third parties arising from any third-party action brought against MSP based upon a claim that any of the Products (in the form provided by ThreatBlockr) infringes any patents or copyrights, or misappropriates any trade secrets. If the Products become, or in ThreatBlockr’s opinion are likely to become, the subject of an infringement claim, ThreatBlockr may, at its option and expense, either (i) procure for MSP the right to continue exercising the rights licensed to ThreatBlockr in this Agreement; (ii) replace or modify the affected Product so that it becomes non-infringing; or (iii) accept return of the affected Products, refund to MSP prorated payments of fees for such returned Products made by MSP to ThreatBlockr pursuant to Section 7 (Pricing and Payment), reduced on a straight-line basis over three (3) years from the date of delivery of such Product by ThreatBlockr, and terminate this Agreement by written notice to MSP. This indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from modifications made to the Products by a party other than ThreatBlockr, the combination of the Product with the MSP Components or other items not supplied by ThreatBlockr, or MSP’s solicitation of orders or distribution of Product after ThreatBlockr has instructed MSP to cease soliciting orders or distribution for such Product. THIS SECTION STATES MSP’S SOLE AND EXCLUSIVE REMEDY AND THREATBLOCKR’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
11.2. Indemnification by MSP. MSP agrees to defend and hold ThreatBlockr and its suppliers harmless against any loss, liability and expense (including reasonable attorneys’ fees) paid to third parties arising from (i) any claims of infringement caused in whole or in part by modifications or improvements to the Products created by or on behalf of MSP, or by any combination of the Products with the MSP Components; (ii) any claims arising from the use of the ThreatBlockr Products for any of the Excluded Uses in Section 10.4; and (iii) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of MSP relating to the Products, or Support Services, other than as authorized by ThreatBlockr in writing or made in the Documentation.
12. LIMITATION OF LIABILITY EXCEPT FOR BREACHES OF SECTION 5 (INTELLECTUAL PROPERTY) OR SECTION 8 (CONFIDENTIALITY) AND EACH PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION): (I) NEITHER PARTY (NOR ANY OF THREATBLOCKR’S SUPPLIERS) SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE AMOUNT PAID OR PAYABLE BY MSP DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIABILITY LIMIT IS CUMULATIVE AND THE EXISTENCE OF ONE OR MORE CLAIMS HEREUNDER SHALL NOT ENLARGE THE LIMIT. THE FOREGOING DOES NOT LIMIT MSP’S PAYMENT OBLIGATIONS UNDER SECTION 7 (PRICING AND PAYMENT) FOR PURCHASES OF PRODUCTS AND SUPPORT SERVICES.
13.1. Independent Contractors. Each party hereto is an independent contractor of the other and nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. Neither party shall make any commitment, by contract or otherwise, binding upon the other party or represent it has any authority to do so.
13.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. Any claims or suits filed in connection with the subject matter of this Agreement will be filed exclusively in the state or federal courts resident in the Commonwealth of Virginia, and the parties hereby submit to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, and the parties hereby disclaim the application thereof.
13.3. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of Section 5 (Intellectual Property), Section 8 (Confidentiality) may cause irreparable damage for which recovery of money damages shall be inadequate, and that a party shall therefore be entitled to obtain timely injunctive relief to protect such party’s rights under this Agreement in addition to any and all remedies available at law.
13.4. Notices. All notices required under Sections 3.2, 8, 9, 11 and 13 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight deliver such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. Notices shall be sent to the parties at the addresses in the heading of this Agreement or such other address as either party may designate for itself in writing. If the notice is to ThreatBlockr, a copy shall also be sent to the attention of its Chief Executive Officer at the ThreatBlockr address specified herein. All other notices and reports may be made by email or other electronic communications.
13.5. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
13.6. Waiver; Severability. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter. In the event that any provision of this Agreement shall be held by a court to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
13.7. Compliance with Laws. Each party shall obey all applicable laws and regulations in the performance of its duties and tasks under this Agreement. Without limiting the foregoing, each party will comply with all applicable U.S. and foreign export control laws and regulations, including the Export Administration Regulations promulgated by the U.S. Department of Commerce.
13.8. Construction. The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to define, construe or describe the scope of any aspect of this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
13.9. Assignment. MSP may assign this Agreement to its successor as part of a merger or acquisition by or of MSP, with prior written notice to ThreatBlockr. Except as provided above, MSP may not delegate, assign or transfer this Agreement, and its rights and obligations hereunder, and any attempt to do so, without ThreatBlockr’s express prior written consent, will be null and void. ThreatBlockr may assign this Agreement, and its rights and obligations hereunder, in its discretion.
13.10. Entire Agreement; Modification. This Agreement, including the exhibits, constitutes the entire agreement between MSP and ThreatBlockr and supersedes in their entirety any oral or written agreements previously existing between MSP and ThreatBlockr with respect to the subject matter hereof. This Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and that is signed by duly authorized representatives of MSP and ThreatBlockr.
13.11. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument.