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Terms of Service

1. ACCEPTANCE OF TERMS

Portnox Security, LLC and affiliated entities ("Portnox") provides technology-enabled services, including the website at https://www.portnox.com and other related software, content, and services, including all versions and upgrades thereto (collectively, the "Services).  Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service ("TOS"). Portnox may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the "Terms of Service" link within the Services, or as otherwise made available by Portnox.

PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.

THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.

2. TRADEMARKS

You may not use the Portnox names, brands, trademarks, service marks and logos that Portnox makes available on the Services ("Marks"). Portnox claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name.  You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Portnox.  You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Portnox's benefit.

3. PRIVACY POLICY

In addition to this TOS, the Portnox Privacy Policy at https://portnox.com/privacy-policy ("Privacy Policy") applies to how Portnox may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Portnox may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Portnox may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.

4. PROPRIETARY RIGHTS

(a) You grant Portnox and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.

(b) The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Portnox retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Portnox, Portnox and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Portnox reserves all rights not expressly granted to you in this TOS.

(c) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Portnox immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Portnox reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.

5. USER CONDUCT AND RESTRICTIONS

(a) In your use of the Services, you will not:

(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;

(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;

(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;

(iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;

(v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;

(vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

(vii) remove or obscure any proprietary notice that appears within the Services;

(viii) impersonate any person or entity, including Portnox personnel, or falsely state or otherwise misrepresent your affiliation with Portnox, or any other entity or person;

(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or

(xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.

(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:

(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;

(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);

(iii)infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;

(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;

(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;

(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or

(vii) consists of information that you know or have reason to know is false or inaccurate.

(c) Portnox's failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Portnox, and does not create a private right of action for any other party.

6. FEEDBACK

If you elect to provide or make available to Portnox any suggestions, comments, ideas, improvements or other feedback relating to the Services ("Feedback"), Portnox shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.

7. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such ("Third Party Services").  You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that terms and policies are solely between you and the advertiser or other third party. You agree that does not endorse and is not responsible or liable for any issues related to Third Party Services.

8. INDEMNIFICATION

You shall indemnify and hold Portnox and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, "Portnox Parties") harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys' fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Portnox; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOS.

9. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PORTNOX PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

(b) PORTNOX PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.

(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.

(d) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED.  ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).

10. LIMITATION OF LIABILITY

(a) PORTNOX PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF PORTNOX PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL PORTNOX PARTIES' TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO PORTNOX FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.

(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11. SUSPENSION AND TERMINATION

(a) Either party may terminate this TOS at any time.

(b) If you violate this TOS, Portnox may, with or without notice to you, immediately suspend or terminate your access and use of the Services.

(c) Portnox reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Portnox shall not be liable to you or any third party for any such modification or discontinuance;

(d) Upon termination of this TOS for any reason: (i) Portnox, in its sole discretion, may remove and discard your content and information; (ii) you will immediate cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Portnox shall not be liable to you or any third party for any termination of your account or access to the Services.

12. GOVERNING LAW

This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.

13. BINDING ARBITRATION AND CLASS ACTION WAIVER

(a) ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT'S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA's rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA's rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

(d) Notwithstanding anything to the contrary, you and Portnox may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.

(e) If Portnox implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Portnox before the implementation of the change.

14. LEGAL COMPLIANCE

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a "terrorist supporting" country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

15. U.S. GOVERNMENT ENTITIES

This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and qualifies as "commercial items" as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are "commercial computer software" and "commercial computer software documentation" as defined in this section; and (ii) acceptance of the rights and obligations herein.

16. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Portnox's Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Portnox's Agent for Notice of Copyright Claims. Portnox's Agent for Notice of Copyright Claims can be reached as follows:

Agent for Notice of Copyright Claims
5301 Southwest Parkway, Suite 470
Austin, TX 78735
Email: [email protected]

17. CALIFORNIA USERS & RESIDENTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

18. GENERAL PROVISIONS

This TOS constitutes the entire agreement between you and Portnox concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Portnox with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern.  This TOS may not be amended by you except in a writing executed by you and an authorized representative of Portnox. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words "such as," "include," "includes" and "including" shall be deemed to be followed by the words "without limitation." You may not assign or delegate any right or obligation under this TOS without the prior written consent of Portnox. The failure of Portnox to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Portnox hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

SERVICE LEVEL AGREEMENT

Introduction

This Service Level Agreement (“SLA”) outlines the service levels applicable to Customers or MSPs, as applicable, who have purchased service support as indicated on such Customer’s or MSP’s Order and pursuant to either (i) the Software as a Service Agreement (the “SaaS Agreement”) by and between  Portnox Security, LLC and affiliated entities (“Portnox”) and Customer or (ii) the Managed Security Service Provider Agreement (the “MSSP Agreement”) by and between Portnox and MSP. All terms and conditions specified below are subject to SaaS Agreement or MSSP Agreement, as applicable, and any terms capitalized but not defined herein have the meanings ascribed to them in the SaaS Agreement or MSSP Agreement, as applicable.

If you are a customer of a MSP that has signed up for the Portnox Services through such MSP, or an end user of any such customer, this SLA does not apply to you and any and all support services with respect to any product or service offering of Portnox shall be provided to you directly by the MSP and shall be governed by the agreement governing your relationship with such MSP.

Customer and MSP Obligations:

  1. Portnox’s obligation to provide the service support is conditioned upon (i) Customer using the Services in accordance with the terms and conditions of this SLA, the SaaS Agreement, and any and all written instructions and guidance provided by Portnox via the Services or otherwise from time to time and (ii) MSP and its Customers using the Portnox Services (referred to herein as the “Services” and providing the Managed Services in accordance with the terms and conditions of this SLA, the SaaS Agreement, the MSSP Agreement, and any and all written instructions and guidance provided by Portnox from time to time.

Portnox Obligations:

Portnox will use commercially reasonable efforts to respond promptly to all reasonable service requests from Customer and MSP regarding the use of the Services according to the relevant service and severity levels, and response and resolution times as set forth below.

Available Service Levels are as follows:

SERVICE

STANDARD

PREMIUM

On-line (Web, Email) trouble tickets ManagementCheck mark, Wingdings font, character code 254 decimal.Check mark, Wingdings font, character code 254 decimal.
Access to the support knowledge databaseCheck mark, Wingdings font, character code 254 decimal.Check mark, Wingdings font, character code 254 decimal.
Resource center accessCheck mark, Wingdings font, character code 254 decimal.Check mark, Wingdings font, character code 254 decimal.
Trouble ticket response timeBusiness Hours24 hours per day, 7 days per week
Direct phone access to support engineers Check mark, Wingdings font, character code 254 decimal.
Priority trouble ticket processing Check mark, Wingdings font, character code 254 decimal.
Unplanned service disruption notificationsCheck mark, Wingdings font, character code 254 decimal.Check mark, Wingdings font, character code 254 decimal.
Planned service updates notificationsCheck mark, Wingdings font, character code 254 decimal.Check mark, Wingdings font, character code 254 decimal.
Dedicated Technical Account Manager Available at incremental fee as specified in an applicable Order

Severity Levels:

SEVERITY LEVELDESCRIPTION
Level 1Critical Business Impact: The Services are down or completely unusable for production requirements, resulting in Customer or MSP being unable to reasonably access mission critical functionality.
Level 2Significant Business Impact: Major functionality and/or features of the Services are unavailable with no reasonable workaround. Portnox is functioning in a limiting capacity and/or functionality is severely restricted.
Level 3Minimal Business Impact: Features of the Services are unavailable but a workaround exists and the majority of functions are still available and useable. Minor feature or function failure occurs that has minor impact on operational functionality.
Level 4No Business Impact: Minor problem or request that does not affect the function or operation of the Services. There is no impact to usage or Customer’s or MSP’s operation.

Portnox Targeted Response Times:

SERVICE TYPE

STANDARD

PREMIUM

Severity LevelInitial ResponseResolutionInitial ResponseResolution
Level 1Within 4 Business Hourcontinuous work through business hours until workaround is provided or issue is resolvedWithin 1 Hourscontinuous work until workaround is provided or issue is resolved
Level 2Within 8 Business Hourswork according to priority through business hours until workaround is provided or issue is resolvedWithin 4 Business Hourswork according to priority through business hours until workaround is provided or issue is resolved
Level 3Next Business Daywork according to priority through business hours until workaround is provided or version release requiredWithin 8 Business Hourswork according to priority through business hours until workaround is provided or version release required
Level 4Next Business Daywork according to priority through business hours until workaround is provided or version release requiredNext Business Daywork according to priority through business hours until workaround is provided or version release required

Portnox, at its option, reserves the right to refuse to perform such services and/or charge Customer or MSP with Portnox’s then-current rates for performing the said services due to: (a) relocation, movement, improper operation, neglect or misuse of the Services; (b) Customer’s or MSP’s failure to maintain proper site or environmental conditions; (c) the fault or neglect of Customer or MSP, or MSP’s or Customer’s agents or employees; (d) any attempt at repair, maintenance or modification of the Services performed by anyone other than authorized Portnox service personnel or third parties; (e) a casualty, act of God or the unauthorized act of any third party; (f) failure or interruption of any electrical power, telephone or communication service or like cause; (g) any other cause external to the Services except for ordinary use; or (h) Customer’s failure to install any update to the Services that Portnox make available within sixty (60) days of such update’s release (each of (a) through (h), a “Permitted Outage”).

Portnox CLEAR Service SLA:

For the duration of the Term, the Services will be operational and available to handle device authentication requests 99.9% of the time in any calendar month (“Service SLA”).  Except for Permitted Outages, if Portnox does not meet the Service SLA, each of Customer and MSP is entitled to receive the Service Credits described below (each a “Service Credit”).  Any Service Credit issued for a particular month will be calculated as a percentage of the Service Fees or MSP Fees, as applicable for such month (for purposes of this SLA, the “Fees”).  This provision states Customer’s and MSP’s sole and exclusive remedy for any failure by Portnox to meet the Service SLA.

Definitions:

  • “Downtime” means the time in minutes that Customer or MSP is unable to access the Services, in all cases due to failure or malfunction of the Portnox CLEAR Service except in connection with Permitted Outages.  Downtime does not include any unavailability of the Services due to planned updates and maintenance to the Services. Downtime is measured based on server-side errors.
  • If uptime is less than the Service Availability Level in any month during the Term, Portnox will issue a Service Credit in accordance with the following schedule:

SERVICE AVAILABILITY LEVEL 

SERVICE CREDIT

99.8%-99.0%10% of total Fees applicable to month in which failure occurred
98.9% - 98.1%20% of total Fees applicable to month in which failure occurred
98.0% - 97.6%30% of total Fees applicable to month in which failure occurred
<97.5%50% of total Fees applicable to month in which failure occurred

Customer Must Request Service Credit

In order to receive any of the Service Credit described above, Customer or MSP must notify Portnox support within thirty (30) days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s or MSP’s, as applicable, right to receive a Service Credit.

Maximum Service Credit

The aggregate maximum percentage of Service Credits to be accrued by Portnox to Customer or MSP for all Downtime that occurs in a single calendar month shall not exceed fifty percent (50%) of the total Fees applicable to such month.

Portnox will apply Service Credit value by way of discounts to be applied to future  Fees, service purchases and/or renewals.

Contacting Portnox

Customers or MSPs can contact Portnox using the following methods according to their paid subscription plan and benefits:

Web Support Center

support.portnox.com – Portnox’s Web Support Center is the central place for support services including: support case submission and tracking, knowledge base, recent updates etc. It is the recommended method of contacting support. If Customer or MSP chooses to contact support in any other way, Portnox’s support personnel will guide Customer or MSP through the web site to open a case for better case management and tracking.

Email Support

By sending email to [email protected]

Phone Support

Customers or MSPs who have purchased Premium Service should call:

  • In the United States - 855-476-7866
  • In the United Kingdom - +44-1273-256-325
  • All other countries - +972-920-5090

SOFTWARE AS A SERVICE (SAAS) AGREEMENT

YOU ACCEPT THIS SOFTWARE AS A SERVICE AGREEMENT, INCLUDING ALL ORDERS, ADDENDA, EXHIBITS AND SCHEDULES HERETO WHICH BY REFERENCE ARE INCORPORATED HEREIN (COLLECTIVELY, THIS "AGREEMENT") BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY SIGNING (ELECTRONICALLY OR MANUALLY) THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TOTHE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. THIS AGREEMENT APPLIES UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT IN PLACE EXPRESSLY COVERING THE SERVICES.

1. INTERPRETATION

1.1 In this Agreement, the following definitions shall have the following meanings:
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
‟Portnox" means Portnox Security, LLC and affiliated entities.
"Beta Services" means Services labeled alpha, beta, early availability, pre-release, trial, preview or similarly. ‟Customer" ‟You" ‟Your" means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, Portnox or other legal entity for which you are accepting this Agreement, which may include its Affiliates, as set forth in the applicable Order.

"Approved Source" means Portnox or a Portnox's authorized reseller, distributor or systems integrator.
"Customer Data" shall mean, any and all data, information and/or content that Customer create, edit, post, process, upload, transmit or otherwise provide to Portnox through the Services, either in the form of source code, text, image, video, link or other, posted on, transmitted through, or linked from the Services, including and without limitation, any information/data of Customer and/or of other third parties, including any personal data related to Customer's clients or users or otherwise.
"Order" means an ordering document between Customer or an Approved Source (as applicable) that identifies the duration, type and quantity of the Services ordered under this Agreement and the associated fees. In the event of any terms of an Order which conflict with the terms of this Agreement, the terms of an Order shall control.
‟Privacy Policy" means Portnox's then current privacy policy located at https://www.portnox.com/privacy-policy/ as may be revised from time to time.
"Services" means Portnox's, (i) online cloud-based software as a service (SaaS), made available to Customer pursuant to the terms of this Agreement; and (ii) the Support Services; (iii) other related services in connection therewith, as now offered and/or may be offered in the future; and (iv) the Beta Services.
"Services Fees" means, the subscription fees payable by the Customer to Portnox for the Services, as set out in Order.
‟Support Services" means any and all maintenance and support services as may be provided by Portnox to Customer pursuant to Portnox's standard Service Level Agreement terms, currently available at: https://portnox.box.com/v/clearsla, or any other terms specifically agreed in writing between Customer and Portnox (‟SLA").
"We," "Us" or "Our" means Portnox and its subsidiaries or Affiliates involved in providing the services.
The headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of this Agreement.

2. PROVISION OF SERVICES

2.1 In consideration of the fees paid by Customer under this Agreement or in case of Customer purchased the Services through an Approved Source, subject to the payment of such fees agreed between Customer and such Approved Source, Portnox agrees to provide Customer access to the Services.

3. GRANT OF RIGHTS; PROHIBITED USE

3.1 Subject to the terms of this Agreement, Portnox hereby grants to Customer, during the Term (as defined below), solely for the Customer's internal business operations and for non-commercial purpose, and strictly in accordance with the terms and conditions of this Agreement and with any applicable law, a limited, non-commercial, non-perpetual, non-exclusive, non-transferable, revocable and limited right to access and use the Services for the subscription period specified under the Order.

3.2 Except as expressly authorized in this Agreement, the Customer shall not and will not permit any third party to: (a) attempt to copy, modify, adapt, create derivative works from frame, mirror, or download, all or any portion of the Services in any form or media or by any means; and/or (b) attempt to decompile, disassemble, reverse engineer or otherwise attempt to discover any source code from, all or any part of the Services; and/or (c) sell, rent, lease, transfer, sublicense, display or otherwise dispose, commercially exploit, or otherwise make the Services available to any third party; and/or (d) access or use all or any part of the Services for any other purposes (including for any competitive analysis, commercial, professional or other for-profit purposes); and/or (e) remove, alter, obscure, cover or change any trademark, copyright, or other proprietary notices, labels or marking from or on the Services; and/or (f) create or send any viruses, worms or trojan horses, flood or mail bombs, or engaging in denial of service attacks while using the Services; and/or (g) use or launch any automated system, including without limitation, any "robots", "spiders", or "offline readers", that accesses the Service in a manner that sends to the servers, cloud or other platform on which the Services operates, more request messages in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; and/or (h) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Services (including by using software, scripts or automated agents and bots); and/or (i) use the Services in excess of the capacity specified in an applicable Order, and/or and/or (j) use the Services in any manner that is unlawful or prohibited or in violation of this Agreement and/or any applicable law or regulation.

3.3 Portnox reserves the right, at its sole discretion without any liability to the Customer, to, in the event of any breach by Customer or anyone on its behalf, of the provisions of this Section 3: (i) allow Customer to cure any such breach within five (5) days of Portnox's provision of written notice to Customer of the discovery of any such breach, or (ii) immediately disable, suspend or terminate Customer's access to the Services which, in Portnox's sole discretion, are reasonably likely to result in a material adverse effect on Portnox, its business, or its customers or vendors.

3.4 Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, it shall promptly notify Portnox.

3.5 The rights provided under this Section 3 are granted to Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

4. REGISTRATION TO SERVICE

4.1 Customer acknowledges that certain functionalities of the Services require registration in order to be able to enjoy such functionalities. Portnox reserves the right to decide which functionalities require registration or will require registration in the future. The registration process may require Customer to provide information regarding (but not limited to) its first and last name, its e-mail address at work, its phone number, the name of its workplace, the country and size of such workplace (how many employees are employed in such workplace), its role and function at such workplace and/or other information. By performing the registration, Customer represent and warrant that all registration information it submits is accurate and truthful and that it agrees to update and maintain the accuracy of such information. Portnox reserves the right to disable, suspend or terminate Customer's access to the Services, if registration information submitted by such Customer seems or proves to be false, inaccurate or incomplete. Registration of more than one account per individual is not permitted and automatic generation of multiplied accounts by individuals or organizations is restricted and may lead to legal action.

5. CUSTOMER DATA

5.1 In respect of Customer Data, Portnox shall process and use any Customer Data in accordance with its Privacy Policy and applicable laws, regulations, directives and certifications relating to data protection and privacy (collectively "Data Protection Laws"). To the extent Customer provides to Portnox personal data from a third party data subject when Customer is acting as their data controller, Portnox will process such personal data in accordance with Data Protection Laws.

5.2 Customer represents, warrants and agrees that: (a) Customer has all rights to provide the Customer Data and other materials that Customer provides or makes available to Portnox; (b) Customer is solely responsible for all Customer Data and for its conduct while using the Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Customer Data; (ii) it is responsible for protecting and backing up the Customer Data; (iii) it is responsible for protecting the confidentiality of all Customer Data in its possession and control; and (iv) under no circumstances will Portnox be liable in any way for the content of any Customer Data, including, but not limited to, any errors or omissions in any Customer Data, or any loss or damages or any kind incurred as a result of Customer's use, deletion, modification, or correction of any Customer Data. Customer has full discretion and control on how to store, protect, remove or delete any Customer Data on the Portnox Services and Portnox shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Customer Data.

6. THIRD PARTY PROVIDERS
6.1 The Services may include or provide access to third party products, services, content or offerings ("Third Party Services"). Customer acknowledges that different terms of use and privacy policies may apply to Customer's use of such Third Party Services and that terms and policies are solely between Customer and the advertiser or other third party.  Customer agrees that Portnox does not endorse and is not responsible or liable for any issues related to Third Party Services.                                                                                                                                                                                                                                                                                                                                             

7. STATISTICAL INFORMATION

7.1 Portnox may compile statistical information related to the performance of the Services, and may use and/or make such information publicly available on an aggregate basis or in an anonymized or de-identified manner that does not allow personal data to be separated from the aggregate data and identified as originating from Customer. Portnox retains all intellectual property rights in such information.

8. PORTNOX'S OBLIGATIONS

8.1 Portnox undertakes to use commercially reasonable endeavors to make the Services available within the time frame set forth in the SLA, and further undertakes that the Services will be provided with reasonable commercial skill and care.

8.2 The undertaking in Section 8.1 above shall not apply to the extent that any non-conformance which is caused by use of the Services in contrary to Portnox's instructions and/or in any way other than in strict compliance with this Agreement. Subject to the foregoing, if the Services do not conform to the undertaking in Section 8.1, Portnox will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy, and Portnox's sole liability, for any breach of the undertaking set out in Section 8.1.

8.3 If the Services do not conform to the foregoing undertaking, Portnox will, at its expense and its discretion, use all reasonable commercial endeavors to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Section 8.1.

9. CUSTOMER'S OBLIGATIONS

9.1 Customer hereby represents and warrants that it has legally acquired and/or owns all right, title and interest, in and to all copies of the Customer Data and that it has the right to use, distribute, provide to Portnox and transmit through the Services, such Customer Data. By using the Services, Customer gives its consent to Portnox, and grant Portnox with a worldwide, royalty-free, and non-exclusive license, to scan and collect such Customer Data, store such Customer Data in Portnox's servers, third party's external servers or cloud services on which the Services operates, and to use such Customer Data in order to provide it with the Services.

9.2 Notwithstanding anything to the contrary herein, Customer agrees that it will: (a) provide Portnox with all necessary cooperation in relation to this Agreement and in order to render the Services; and (b) comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Services; and (c) carry out all other Customer responsibilities set out in this Agreement in a reasonable manner; and (d) to the extent required, obtain and maintain all necessary licenses, consents, and permissions necessary for Portnox to perform its obligations under this Agreement, including, without limitation, for the transmission through the Services of any Customer Data; and (e) ensure that its network and systems comply with the relevant specifications provided by Portnox from time to time; and (f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Portnox's data centers, Portnox's servers, third party's external servers, cloud or other platform on which the Services operates (as shall be instructed by Portnox from time to time), and be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

10. FEES AND PAYMENT FOR THE SERVICE

10.1 This Section 10 applies to Orders for the Services Customer place directly with Portnox. If Customer ordered the Services from an Approved Source, Customer's agreement with the Approved Source will provide the applicable payment terms.

10.2 In consideration of the Services, Customer hereby agrees to pay Portnox the Services Fees set forth in the Order in accordance with the payment terms set forth therein. Customer will pay invoices for the Services within 30 days of the invoice date unless the Order specifically states otherwise.

10.3 Any Services Fees, not paid when due, are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In addition, if Customer is more than 30 days late in paying an invoice, without prejudice to any other rights and remedies available to Portnox under any applicable law, Portnox may, at its sole discretion without liability to the Customer, disable, suspend or terminate the Customer's and/or anyone on its behalf (as applicable) access to all or part of the Services, and Portnox shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.

10.4 All Services Fees are non-cancellable and non-refundable; the Services Fee exclude any applicable taxes, accordingly Customer hereby agree to pay applicable taxes and similar charges, including sales, usage, excise and value added taxes, but excluding withholding taxes and taxes solely based on Portnox's net income. Nothing in this Agreement requires either party to pay income taxes or similar charges of the other party.

11. PROPRIETARY RIGHTS

11.1 Portnox shall retain all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights in and to the Services and/or its technology, including any improvements, updates, upgrades, error-corrections or other modifications thereof, and any work products thereof. Except for the rights expressly granted to Customer under Section 3.1 above, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of Portnox, its technology, its products and services (including the Services) and/or any documentation ancillary thereof.

11.2 Portnox shall be the sole and exclusive owner of all rights in connection with any and all ideas, inventions and/or improvements (whether patentable or not) conceived or derived or result from, or relate to, directly or indirectly, any feedback (written or oral) that Customer voluntarily choose to provide Portnox regarding the Services and/or its experience while using the Services. Customer irrevocably assigns to Portnox any rights that Customer may have or acquire in such ideas, inventions and/or improvements, and it irrevocably waives any right it has or may have in the future to receive any payment, royalty or other consideration (of any kind) with respect to such ideas, inventions and/or improvements.

 

11.3 Customer agrees that Portnox, in its sole discretion, may use Customer's trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to Customer's Website) for promotional and publicity purposes.

11.4 This Section 11 (except for Section 11.3) shall survive any termination or expiration of this Agreement.

12. CONFIDENTIALITY

12.1 Each party may be provided with, given access to, or exposed to, Confidential Information of the other party in connection with this Agreement. ‟Confidential Information" shall mean any information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including but not limited to proprietary, technical, development, marketing, sales, price, operating, performance, cost, know-how, business and process information, methods, procedures, data, computer programming techniques and computer code, any information regarding suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others, and all record bearing media containing or disclosing such information and techniques, which is disclosed by one party to the other party pursuant to this Agreement or to which the other party is exposed or given access in connection with this Agreement, whether or not marked as "Confidential" or similar marking. Without derogating from the generality of the foregoing, Confidential Information of Portnox shall include also the details of the Services, and the results of any performance tests of the Services and any work products of the Services, and Confidential Information of the Customer shall include also the Customer Data.

12.2 Confidential Information shall not include any information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party's lawful possession before the disclosure, as evidenced by applicable documentary; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, as evidenced by applicable documentary; or (e) is required to be disclosed by any final judicial or administrative order or decree or pursuant to any applicable law.

12.3 Each party shall hold the other party's Confidential Information in strict confidence, shall not disclose or make such Confidential Information available to any third party, and shall not use such Confidential Information for any purpose other than for performing its obligations under this Agreement.

12.4 Each party shall be entitled to disclose the other party's Confidential Information to its officers, directors, employees and consultants (‟Representatives"), on a need to know basis, provided that such Representatives are bound by confidentiality obligations of at least scope of this Agreement and provided further that such party shall be responsible for and liable to any breach or violation of this Agreement by such Representatives.

12.5 This Section 12 shall survive any termination or expiration of this Agreement.

13. CHANGES TO THE SERVICES

13.1 Portnox reserves the right at any time and from time to time to modify, temporarily or permanently, the Services (or any part thereof), provided such modification does not materially diminish the functionality of the Services to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Portnox shall use commercially reasonable efforts to notify Customer prior to any such modification; Customer acknowledges that Portnox reserves the right to discontinue offering the Services at the conclusion of Customer's then current Term. Customer agrees that Portnox will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 14.

14. EXPORT

14.1 Customer acknowledges and agrees that it will comply with all applicable laws relating to bribery and corruption, and export control laws  and regulations of the United States and any other country.. Customer agrees that no data, information, programs and/or materials resulting from services (or work products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

15. INDEMNITY

15.1 Claims Against Customer.  Portnox will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Services, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party ("Customer Claim"), and Portnox will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If Portnox receives prompt notice of a Customer Claim that, in Portnox's reasonable opinion, is likely to result in an adverse ruling, then Portnox may (i) obtain a right for Customer to continue using the Services at issue; (ii) modify such Services to make it non-infringing; (iii) replace such Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services.

15.2 Portnox Indemnity Limits.  Notwithstanding the foregoing, Portnox will have no obligation under Section 15.1. or otherwise with respect to any infringement claim based upon:  (i) any use of the Services not expressly permitted under this Agreement; (ii) any use of the Services in combination with products, equipment, software, or data not made available by Portnox if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Services by any person other than Portnox or its authorized agents or subcontractors (collectively, "Excluded Claims").  Portnox will have no obligation under Section 15.1 or otherwise with respect to any claim based upon the use by Customer of any Customer Data uploaded or accessed through the Services to the extent such claim is not based on the Services itself.  Section 15.1 states Portnox's sole liability and Customer's exclusive remedy for all third party claims.

15.3 Claims Against Portnox.  Customer will defend, at its own expense, and hold Portnox harmless against any claim, suit or action against Portnox brought by a third party to the extent that such claim, suit or action arises from (i) Customer's failure to comply with or violation of any applicable law or regulation, (ii) Customer's infringement of any third party's Intellectual Property Right, (iii) Customer's use of any Customer Data, (iv) Customer's products or services, or (v) Excluded Claims (each, a "Portnox Claim"), and Customer will indemnify Portnox harmless from liability incurred by Portnox that is specifically attributable to such Portnox Claim or those costs and damages agreed to in a monetary settlement of such Portnox Claim.

15.4 Procedure. The foregoing obligations are conditioned on the party seeking indemnification:  (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at its own discretion and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party's prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

16. WARRANTY AND WARRANTY DISCLAIMERS

16.1 EXCEPT AS OTHEREWISE EXPRESSLY SPECIFIED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER. ALL EXPRESS, IMPLIED AND/OR STATUTORY WARRANTIES IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PORTNOX (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. FURTHERMORE, Portnox has no obligations in connection with or in the course of providing the Beta Services and any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Portnox does not assume any obligation to update any Beta Services. Portnox undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by Portnox. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.

16.2 Notwithstanding anything herein to the contrary Portnox: (a) does not warrant that the Services will operate error free or without interruption or bugs; nor that the Services will meet the Customer's requirements or expectations; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

 

17. LIMITATION OF LIABILITY; DISCLAIMERS

17.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT: (A) IN NO EVENT SHALL PORTNOX BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES; AND (B) IN NO EVENT SHALL PORTNOX'S TOTAL AGGREGATE LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES, EXCEED THE TOTAL SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM LEADING TO LIABILITY AROSE.

17.2 Notwithstanding anything to the contrary herein, Portnox will not be held liable for any delay or failure in performance or non-availability of the Services resulting, directly or indirectly, from acts of nature, forces, events, omissions, accidents or causes beyond its reasonable control, including, but not limited to, internet failure, network or computer equipment failures, telecommunication equipment failure, electrical power failures, strikes, lock-outs or other industrial disputes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, breakdown of plant or machinery, acts of God, war, governmental actions or orders, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning.

17.3 This Section 17 shall survive any termination or expiration of this Agreement.

18. TERM AND TERMINATION

18.1 This Agreement shall commence on the date the Services are available for use by Customer and lasts for the time period stated in the Order (‟Term"). Notwithstanding the foregoing, and without prejudice to any other rights or remedies to which the parties may be entitled under this Agreement and/or any applicable law, either party may immediately terminate this Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; and/or (b) if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization and said petition shall remain unvacated for and said petition shall remain unvacated for a period of 30 days , (v) has a receiver appointed, or (vi) institutes any proceedings for the liquidation or winding up that is not discharged within 60 days of filing; and/or (vii) any other termination of this Agreement as specified under the terms of this Agreement.

18.2 Upon termination or expiration of this Agreement for any reason whatsoever: (a) all rights granted to Customer under this Agreement shall immediately terminate; (b) the Customer shall immediately cease any use of the Services; (c) all outstanding Services Fees will immediately become due and payable by Customer; (d) each party shall return and make no further use of any Confidential Information (and all copies of them) belonging to the other party; and (e) Portnox shall destroy any of the Customer Data in its possession (if any). For the avoidance of doubt, any provision expressly stated to survive or implicitly surviving termination or expiration, shall not be affected or prejudiced by such termination or expiration.

19. MISCELLANEOUS

19.1 This Agreement constitute the entire agreement between the parties regarding the subject matter thereof, and supersede any previous arrangement, understanding or agreement between the parties, written or oral, relating to the subject matter hereof.

19.2 No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing and signed by both parties.

19.3 Neither party's waiver of any breach or default of any provision of this Agreement shall not constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default.

19.4 Unless expressly provided otherwise herein, rights arising under this Agreement are cumulative and do not exclude rights available by law.

19.5 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions (or the remainder of the provision) shall remain in full force and effect.

19.6 This Agreement does not confer any rights on any third person or party.

19.7 The parties expressly agree that they are independent contractors. Nothing in this Agreement is intended to or shall be interpreted to create a partnership or a joint venture between the parties or authorize either party to act as agent for the other.

19.8 The Customer shall not, without the prior written consent of Portnox, assign, transfer, or sub-contract this Agreement and/or any of its rights or obligations under this Agreement; provided, however, no consent shall be required with respect to an assignment by Customer as a part of a transfer by merger, acquisition, stock transfer or other consolidation of the Customer with another entity, or sale of all or substantially all of Customer's assets. Any unauthorized assignment shall be null and void. Portnox may, at any time, assign, transferor sub-contract any of its rights or obligations under this Agreement.

19.9 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.:
Notices to Portnox should be addressed to [email protected].

19.10 Portnox may provide Customer with notice via email, regular mail and/or postings on Portnox's website. Notices to Portnox should be sent to address set forth above. Notices will be deemed given within 5 days from the delivery date if sent by mail, or within 1 day from the delivery date if send by a courier or delivered by hand.

DATA PROCESSING AGREEMENT

Insofar as Portnox Security, LLC and affiliated entities (“Data Processor”) will be processing personal data on behalf of Customer (“Data Controller”) in the course of performing the Customer's Software as a Service Agreement and as may be indicated on such Customer's Order (collectively and together with any addenda, exhibits or schedules thereto, the “Agreement”), the terms of this Data Processing Agreement (“DPA”) shall apply. Any capitalized terms not otherwise defined in this DPA shall have the meaning given to them in the Agreement. In the event of a conflict between any provisions of the Agreement and this DPA, the provisions of this DPA shall govern and control with regard to the processing of personal data. References to “Data Protection Laws” shall mean any law applicable to Data Processor's processing or use of personal data, including (to the extent applicable), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), The California Consumer Privacy Act of 2018, AB375, Title 1.81.5, including any implementing law, as amended (“CCPA”) and The United Kingdom General Data Protection Regulation, as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”).

  1. Processing.
    1. Data Processor will only process, store, and use the personal data it receives from the Data Controller as necessary to provide the Services, the business purposes as set forth in the Agreement, or Data Controller's prior written instructions. The Data Processor shall never retain, use, disclose, sell, or process the personal data other than as specified in the Data Controller's documented instructions or as otherwise permitted by law. 
    1. The Data Controller has all necessary rights to provide the personal data to the Data Processor for the processing to be performed in connection with the Services. To the extent required by Data Protection Laws, the Data Controller is responsible for providing all necessary privacy notices to data subjects, and unless another legal basis set forth in the Data Protection Laws supports the lawfulness of the processing, and for obtaining any necessary consents from data subject to the processing required under the Agreement. Should such a consent be revoked by a data subject, the Data Controller will inform the Data Processor of such revocation, and the Data Processor is responsible for implementing Data Controller's instruction with respect to the processing of such personal data.
  1. Confidentiality

The Data Processor shall treat all personal data as Confidential Information under the Agreement, and it shall inform all its employees, agents and approved sub-processors engaged in processing the personal data of the confidential nature of the personal data. The Data Processor shall ensure that all such persons or parties have signed confidentiality agreements with obligations no less restrictive in the use and protection of Confidential Information than those in the Agreement.

  1. Security Measures.
  2. Considering the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Data Processor shall implement appropriate technical and organizational measures to ensure a level of security of the processing of personal data appropriate to the risk. The Data Processor shall maintain and follow written security policies that are fully implemented and applicable to the processing of personal data. At a minimum, such policies will include assignment of internal responsibility for information security management, devoting adequate personnel resources to information security, carrying out verification checks on permanent staff who will have access to the personal data, conducting appropriate background checks, requiring employees, vendors and others with access to personal data to enter into written confidentiality agreements, and conducting training to make employees and others with access to the personal data aware of information security risks presented by the processing.
  1. At the request of the Data Controller, the Data Processor shall demonstrate the measures it has taken pursuant to this Article 3 and shall allow the Data Controller to audit and test such measures, to the extent it does not require providing access to other customers' data. Subject to such restriction, the Data Processor shall cooperate with such audits carried out by or on behalf of the Data Controller, shall grant the Data Controller´s auditors reasonable access to any premises and devices involved with the processing of the personal data, and shall provide the Data Controller´s auditors with access to any information relating to the processing of the personal data as may be reasonably required by the Data Controller to ascertain the Data Processor´s compliance with this DPA.
  1. Data Transfers

Data Processor may transfer personal data across the border to a country outside of the United States, as necessary to provide the Services.  Upon request by the Data Controller, Data Processor will provide details of its transfers of EEA personal data outside of the United States.
 

  1. Security Breach.

The Data Processor will notify the Data Controller without undue delay upon discovery of any suspected or actual security or confidentiality breach or other compromise of personal data, describing the breach in reasonable detail, the status of any investigation or mitigation taken by the Data Processor, and if applicable, the potential number of data subjects affected. Data Processor will not communicate with any third party regarding any security breach except as specified by other party or by applicable law.

  1. Subprocessors.

The Data Processor may subcontract any of its Services-related activities or allow any personal data to be processed by a third party, provided that such subprocessors are bound by data protection obligations compatible with those of the Data Processor under this DPA.

  1. Data Subject Rights.

The Data Processor shall assist the Data Controller by appropriate technical and organizational measures, insofar as it is possible, for the fulfilment of the Data Controller's obligation to respond to requests for exercising the data subject's rights under the Data Protection Laws.

END USER LICENSE AGREEMENT

YOU ACCEPT THIS END USER LICENSE AGREEMENT, INCLUDING ALL ORDERS, ADDENDA, EXHIBITS AND SCHEDULES HERETO WHICH BY REFERENCE ARE INCORPORATED HEREIN (COLLECTIVELY, THIS "AGREEMENT"). BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY SIGNING (ELECTRONICALLY OR MANUALLY) THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TOTHE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. THIS AGREEMENT APPLIES UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT IN PLACE EXPRESSLY COVERING THE SERVICES.

1. INTERPRETATION

1.1 In this Agreement, the following definitions shall have the following meanings:
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Agent" means an installation of Portnox-branded software which is used in conjunction with the Software.
‟Portnox" means Portnox Security, LLC and affiliated entities.
"Beta Services" means Services labeled alpha, beta, early availability, pre-release, trial, preview or similarly. ‟Customer" ‟You" ‟Your" means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, Portnox or other legal entity for which you are accepting this Agreement, which may include its Affiliates, as set forth in the applicable Order.
"Approved Source" means Portnox or a Portnox's authorized reseller, distributor or systems integrator.
"Customer Data" shall mean, any and all data, information and/or content that Customer create, edit, post, process, upload, transmit or otherwise provide to Portnox through the Services, either in the form of source code, text, image, video, link or other, posted on, transmitted through, or linked from the Services, including and without limitation, any information/data of Customer and/or of other third parties, including any personal data related to Customer's clients or users or otherwise.
"Documentation" means the technical and user documentation manuals and materials made available by Portnox to Customer.
"Order" means an ordering document between Customer or an Approved Source (as applicable) that identifies the duration, type and quantity of the Services ordered under this Agreement and the associated fees. In the event of any terms of an Order which conflict with the terms of this Agreement, the terms of an Order shall control.
‟Privacy Policy" means Portnox's then current privacy policy located at https://www.portnox.com/privacy-policy/ as may be revised from time to time.
"Services" means Portnox's, (i) Software; (ii) Agents; (iii) the Support Services; (iv) other related services in connection therewith, as now offered and/or may be offered in the future; and (v) the Beta Services.
"Services Fees" means any fees payable by the Customer to Portnox for the Services, as set out in Order.
"Software" means the source code, object code, system documentation, programs, compilers, tools, data models, container images, runtime environments, software wrappers, parsing and transformation grammars, speech recognition pipeline, executable and informational binaries used for the implementation and operation of the Portnox CORE On-Premise NAC product, as further described in the Documentation.
‟Support Services" means any and all maintenance and support services as may be provided by Portnox to Customer pursuant to Portnox's standard Service Level Agreement terms, currently available at: https://portnox.box.com/v/clearsla, or any other terms specifically agreed in writing between Customer and Portnox (‟SLA").
"We," "Us" or "Our" means Portnox and its subsidiaries or Affiliates involved in providing the services.
The headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of this Agreement.

2. PROVISION OF SERVICES

2.1 In consideration of the fees paid by Customer under this Agreement or in case of Customer purchased the Services through an Approved Source, subject to the payment of such fees agreed between Customer and such Approved Source, Portnox agrees to provide Customer access to the Services.

3. GRANT OF RIGHTS; PROHIBITED USE

3.1 Subject to the terms of this Agreement, Portnox hereby grants to Customer, during the Term (as defined below), solely for the Customer's internal business operations and for non-commercial purpose, and strictly in accordance with the terms and conditions of this Agreement and with any applicable law, a limited, non-commercial, perpetual, non-exclusive, non-transferable, revocable and limited right to install and use the Software and Documentation only in the form provided by Portnox.

3.2 Except as expressly authorized in this Agreement, the Customer shall not and will not permit any third party to: (a) attempt to copy, modify, adapt, create derivative works from frame, mirror, or download, all or any portion of the Services in any form or media or by any means; and/or (b) attempt to decompile, disassemble, reverse engineer or otherwise attempt to discover any source code from, all or any part of the Services; and/or (c) sell, rent, lease, transfer, sublicense, display or otherwise dispose, commercially exploit, or otherwise make the Services available to any third party; and/or (d) access or use all or any part of the Services for any other purposes (including for any competitive analysis, commercial, professional or other for-profit purposes); and/or (e) remove, alter, obscure, cover or change any trademark, copyright, or other proprietary notices, labels or marking from or on the Services; and/or (f) create or send any viruses, worms or trojan horses, flood or mail bombs, or engaging in denial of service attacks while using the Services; and/or (g) use or launch any automated system, including without limitation, any "robots", "spiders", or "offline readers", that accesses the Service in a manner that sends to the servers, cloud or other platform on which the Services operates, more request messages in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; and/or (h) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Services (including by using software, scripts or automated agents and bots); and/or (i) use the Services in excess of the capacity specified in an applicable Order, and/or and/or (j) use the Services in any manner that is unlawful or prohibited or in violation of this Agreement and/or any applicable law or regulation.

3.3 Portnox may provide Customer with access to modifications, enhancements, updates and patches to the Software or Documentation as Portnox may make available from time to time ("Updates"). Customer acknowledges and agrees that Customer shall be responsible for installation of any Updates. Furthermore, Customer acknowledges and agrees that any and all notifications and safeguards which appear during the configuration, installation and use of the Services which request Customer to perform or refrain from certain actions or to provide Customer with certain information are not to be ignored and that Customer is responsible for reading such notifications and safeguards and acting according to any instructions therein.

3.4 Portnox reserves the right, at its sole discretion without any liability to the Customer, to, in the event of any breach by Customer or anyone on its behalf, of the provisions of this Section 3: (i) allow Customer to cure any such breach within five (5) days of Portnox's provision of written notice to Customer of the discovery of any such breach, or (ii) immediately disable, suspend or terminate Customer's access to the Services which, in Portnox's sole discretion, are reasonably likely to result in a material adverse effect on Portnox, its business, or its customers or vendors.

3.5 Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, it shall promptly notify Portnox.

3.6 The rights provided under this Section 3 are granted to Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.

4. REGISTRATION TO SERVICE

4.1 Customer acknowledges that certain functionalities of the Services require registration in order to be able to enjoy such functionalities. Portnox reserves the right to decide which functionalities require registration or will require registration in the future. The registration process may require Customer to provide information regarding (but not limited to) its first and last name, its e-mail address at work, its phone number, the name of its workplace, the country and size of such workplace (how many employees are employed in such workplace), its role and function at such workplace and/or other information. By performing the registration, Customer represent and warrant that all registration information it submits is accurate and truthful and that it agrees to update and maintain the accuracy of such information. Portnox reserves the right to disable, suspend or terminate Customer's access to the Services, if registration information submitted by such Customer seems or proves to be false, inaccurate or incomplete. Registration of more than one account per individual is not permitted and automatic generation of multiplied accounts by individuals or organizations is restricted and may lead to legal action.

5. CUSTOMER DATA

5.1 In respect of Customer Data, Portnox shall process and use any Customer Data in accordance with its Privacy Policy and applicable laws, regulations, directives and certifications relating to data protection and privacy (collectively "Data Protection Laws"). To the extent Customer provides to Portnox personal data from a third party data subject when Customer is acting as their data controller, Portnox will process such personal data in accordance with the Data Processing Addendum and Data Protection Laws, as applicable.

5.2 Customer represents, warrants and agrees that: (a) Customer has all rights to provide the Customer Data and other materials that Customer provides or makes available to Portnox; (b) Customer is solely responsible for all Customer Data and for its conduct while using the Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Customer Data; (ii) it is responsible for protecting and backing up the Customer Data; (iii) it is responsible for protecting the confidentiality of all Customer Data in its possession and control; and (iv) under no circumstances will Portnox be liable in any way for the content of any Customer Data, including, but not limited to, any errors or omissions in any Customer Data, or any loss or damages or any kind incurred as a result of Customer's use, deletion, modification, or correction of any Customer Data. Customer has full discretion and control on how to store, protect, remove or delete any Customer Data on the Portnox Services and Portnox shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Customer Data.

6. THIRD PARTY PROVIDERS

6.1 The Services may include or provide access to third party products, services, content or offerings ("Third Party Services"). Customer acknowledges that different terms of use and privacy policies may apply to Customer's use of such Third Party Services and that terms and policies are solely between Customer and the advertiser or other third party.  Customer agrees that Portnox does not endorse and is not responsible or liable for any issues related to Third Party Services.

7. STATISTICAL INFORMATION AND METADATA

7.1 Portnox may compile statistical information related to the performance of the Services, and may use and/or make such information publicly available on an aggregate basis or in an anonymized or de-identified manner that does not allow personal data to be separated from the aggregate data and identified as originating from Customer. Portnox retains all intellectual property rights in such information.

7.2 Portnox may require Customer to install an Agent, which may include without limitation, a remote monitoring and management Agent in connection with Portnox's provision of the Services. Customer agrees that Portnox may collect, disclose, publish and use in any other manner, metadata related to Customer's use of the Services, which is derived from the operation of any Agents, provided that such metadata does not include Customer's Confidential Information or any personal identifiable information, and that Portnox is and shall remain the owner of such metadata.

8. PORTNOX'S OBLIGATIONS

8.1 Portnox undertakes to use commercially reasonable endeavors to make the Services available within the time frame set forth in the SLA, and further undertakes that the Services will be provided with reasonable commercial skill and care.

8.2 The undertaking in Section 8.1 above shall not apply to the extent that any non-conformance which is caused by use of the Services in contrary to Portnox's instructions and/or in any way other than in strict compliance with this Agreement. Subject to the foregoing, if the Services do not conform to the undertaking in Section 8.1, Portnox will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy, and Portnox's sole liability, for any breach of the undertaking set out in Section 8.1.

8.3 If the Services do not conform to the foregoing undertaking, Portnox will, at its expense and its discretion, use all reasonable commercial endeavors to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Section 8.1.

9. CUSTOMER'S OBLIGATIONS

9.1 Customer hereby represents and warrants that it has legally acquired and/or owns all right, title and interest, in and to all copies of the Customer Data and that it has the right to use, distribute, provide to Portnox and transmit through the Services, such Customer Data. By using the Services, Customer gives its consent to Portnox, and grant Portnox with a worldwide, royalty-free, and non-exclusive license, to scan and collect such Customer Data, store such Customer Data in Portnox's servers, third party's external servers or cloud services on which the Services operates, and to use such Customer Data in order to provide it with the Services.

9.2 Notwithstanding anything to the contrary herein, Customer agrees that it will: (a) provide Portnox with all necessary cooperation in relation to this Agreement and in order to render the Services; and (b) comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Services; and (c) carry out all other Customer responsibilities set out in this Agreement in a reasonable manner; and (d) to the extent required, obtain and maintain all necessary licenses, consents, and permissions necessary for Portnox to perform its obligations under this Agreement, including, without limitation, for the transmission through the Services of any Customer Data; and (e) ensure that its network and systems comply with the relevant specifications provided by Portnox from time to time; and (f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Portnox's data centers, Portnox's servers, third party's external servers, cloud or other platform on which the Services operates (as shall be instructed by Portnox from time to time), and be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

10. FEES AND PAYMENT FOR THE SERVICE

10.1 This Section 10 applies to Orders for the Services Customer place directly with Portnox. If Customer ordered the Services from an Approved Source, Customer's agreement with the Approved Source will provide the applicable payment terms.

10.2 In consideration of the Services, Customer hereby agrees to pay Portnox the Services Fees set forth in the Order in accordance with the payment terms set forth therein. Customer will pay invoices for the Services within 30 days of the invoice date unless the Order specifically states otherwise.

10.3 Any Services Fees, not paid when due, are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In addition, if Customer is more than 30 days late in paying an invoice, without prejudice to any other rights and remedies available to Portnox under any applicable law, Portnox may, at its sole discretion without liability to the Customer, disable, suspend or terminate the Customer's and/or anyone on its behalf (as applicable) access to all or part of the Services, and Portnox shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.

10.4 All Services Fees are non-cancellable and non-refundable; the Services Fee exclude any applicable taxes, accordingly Customer hereby agree to pay applicable taxes and similar charges, including sales, usage, excise and value added taxes, but excluding withholding taxes and taxes solely based on Portnox's net income. Nothing in this Agreement requires either party to pay income taxes or similar charges of the other party.

11. PROPRIETARY RIGHTS

11.1 Portnox shall retain all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights in and to the Services and/or its technology, the Software and the Documentation, including any improvements, updates, upgrades, error-corrections or other modifications thereof, and any work products thereof. Except for the rights expressly granted to Customer under Section 3.1 above, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of Portnox, its technology, its products and services (including the Services) and/or any documentation ancillary thereof.

11.2 Portnox shall be the sole and exclusive owner of all rights in connection with any and all ideas, inventions and/or improvements (whether patentable or not) conceived or derived or result from, or relate to, directly or indirectly, any feedback (written or oral) that Customer voluntarily choose to provide Portnox regarding the Services and/or its experience while using the Services. Customer irrevocably assigns to Portnox any rights that Customer may have or acquire in such ideas, inventions and/or improvements, and it irrevocably waives any right it has or may have in the future to receive any payment, royalty or other consideration (of any kind) with respect to such ideas, inventions and/or improvements.

11.3 Customer agrees that Portnox, in its sole discretion, may use Customer's trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to Customer's Website) for promotional and publicity purposes.

11.4 This Section 11 (except for Section 11.3) shall survive any termination or expiration of this Agreement.

12. CONFIDENTIALITY

12.1 Each party may be provided with, given access to, or exposed to, Confidential Information of the other party in connection with this Agreement. ‟Confidential Information" shall mean any information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including but not limited to proprietary, technical, development, marketing, sales, price, operating, performance, cost, know-how, business and process information, methods, procedures, data, computer programming techniques and computer code, any information regarding suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others, and all record bearing media containing or disclosing such information and techniques, which is disclosed by one party to the other party pursuant to this Agreement or to which the other party is exposed or given access in connection with this Agreement, whether or not marked as "Confidential" or similar marking. Without derogating from the generality of the foregoing, Confidential Information of Portnox shall include also the details of the Services, and the results of any performance tests of the Services and any work products of the Services, and Confidential Information of the Customer shall include also the Customer Data.

12.2 Confidential Information shall not include any information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party's lawful possession before the disclosure, as evidenced by applicable documentary; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, as evidenced by applicable documentary; or (e) is required to be disclosed by any final judicial or administrative order or decree or pursuant to any applicable law.

12.3 Each party shall hold the other party's Confidential Information in strict confidence, shall not disclose or make such Confidential Information available to any third party, and shall not use such Confidential Information for any purpose other than for performing its obligations under this Agreement.

12.4 Each party shall be entitled to disclose the other party's Confidential Information to its officers, directors, employees and consultants (‟Representatives"), on a need to know basis, provided that such Representatives are bound by confidentiality obligations of at least scope of this Agreement and provided further that such party shall be responsible for and liable to any breach or violation of this Agreement by such Representatives.

12.5 This Section 12 shall survive any termination or expiration of this Agreement.

13. CHANGES TO THE SERVICES

13.1 Portnox reserves the right at any time and from time to time to modify, temporarily or permanently, the Services (or any part thereof), provided such modification does not materially diminish the functionality of the Services to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Portnox shall use commercially reasonable efforts to notify Customer prior to any such modification; Customer acknowledges that Portnox reserves the right to discontinue offering the Services at the conclusion of Customer's then current Term. Customer agrees that Portnox will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 13.

14. EXPORT

14.1 Customer acknowledges and agrees that it will comply with all applicable laws relating to bribery and corruption, and export control laws  and regulations of the United States and any other country.. Customer agrees that no data, information, programs and/or materials resulting from services (or work products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

15. INDEMNITY

15.1 Claims Against Customer.  Portnox will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Services, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party ("Customer Claim"), and Portnox will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If Portnox receives prompt notice of a Customer Claim that, in Portnox's reasonable opinion, is likely to result in an adverse ruling, then Portnox may (i) obtain a right for Customer to continue using the Services at issue; (ii) modify such Services to make it non-infringing; (iii) replace such Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services.

15.2 Portnox Indemnity Limits.  Notwithstanding the foregoing, Portnox will have no obligation under Section 15.1. or otherwise with respect to any infringement claim based upon:  (i) any use of the Services not expressly permitted under this Agreement; (ii) any use of the Services in combination with products, equipment, software, or data not made available by Portnox if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Services by any person other than Portnox or its authorized agents or subcontractors (collectively, "Excluded Claims").  Portnox will have no obligation under Section 15.1 or otherwise with respect to any claim based upon the use by Customer of any Customer Data uploaded or accessed through the Services to the extent such claim is not based on the Services itself.  Section 15.1 states Portnox's sole liability and Customer's exclusive remedy for all third party claims.

15.3 Claims Against Portnox.  Customer will defend, at its own expense, and hold Portnox harmless against any claim, suit or action against Portnox brought by a third party to the extent that such claim, suit or action arises from (i) Customer's failure to comply with or violation of any applicable law or regulation, (ii) Customer's infringement of any third party's Intellectual Property Right, (iii) Customer's use of any Customer Data, (iv) Customer's products or services, or (v) Excluded Claims (each, a "Portnox Claim"), and Customer will indemnify Portnox harmless from liability incurred by Portnox that is specifically attributable to such Portnox Claim or those costs and damages agreed to in a monetary settlement of such Portnox Claim.

15.4 Procedure. The foregoing obligations are conditioned on the party seeking indemnification:  (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at its own discretion and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party's prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.

16. WARRANTY AND WARRANTY DISCLAIMERS

16.1 EXCEPT AS OTHEREWISE EXPRESSLY SPECIFIED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER. ALL EXPRESS, IMPLIED AND/OR STATUTORY WARRANTIES IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PORTNOX (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. FURTHERMORE, Portnox has no obligations in connection with or in the course of providing the Beta Services and any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Portnox does not assume any obligation to update any Beta Services. Portnox undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by Portnox. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.

16.2 Notwithstanding anything herein to the contrary Portnox: (a) does not warrant that the Services will operate error free or without interruption or bugs; nor that the Services will meet the Customer's requirements or expectations; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

17. LIMITATION OF LIABILITY; DISCLAIMERS

17.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT: (A) IN NO EVENT SHALL PORTNOX BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES; AND (B) IN NO EVENT SHALL PORTNOX'S TOTAL AGGREGATE LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES, EXCEED THE TOTAL SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM LEADING TO LIABILITY AROSE.

17.2 Notwithstanding anything to the contrary herein, Portnox will not be held liable for any delay or failure in performance or non-availability of the Services resulting, directly or indirectly, from acts of nature, forces, events, omissions, accidents or causes beyond its reasonable control, including, but not limited to, internet failure, network or computer equipment failures, telecommunication equipment failure, electrical power failures, strikes, lock-outs or other industrial disputes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, breakdown of plant or machinery, acts of God, war, governmental actions or orders, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning.

17.3 This Section 17 shall survive any termination or expiration of this Agreement.

18. TERM AND TERMINATION

18.1 This Agreement shall commence on the date the Services are available for use by Customer and shall continue until terminated (‟Term"). Notwithstanding the foregoing, and without prejudice to any other rights or remedies to which the parties may be entitled under this Agreement and/or any applicable law, either party may immediately terminate this Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; and/or (b) if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization and said petition shall remain unvacated for and said petition shall remain unvacated for a period of 30 days , (v) has a receiver appointed, or (vi) institutes any proceedings for the liquidation or winding up that is not discharged within 60 days of filing; and/or (vii) any other termination of this Agreement as specified under the terms of this Agreement.

18.2 Upon termination or expiration of this Agreement for any reason whatsoever: (a) all outstanding Services Fees will immediately become due and payable by Customer; and (b) each party shall return and make no further use of any Confidential Information (and all copies of them) belonging to the other party. For the avoidance of doubt, any provision expressly stated to survive or implicitly surviving termination or expiration, shall not be affected or prejudiced by such termination or expiration.

19. MISCELLANEOUS

19.1 This Agreement constitute the entire agreement between the parties regarding the subject matter thereof, and supersede any previous arrangement, understanding or agreement between the parties, written or oral, relating to the subject matter hereof.

19.2 No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing and signed by both parties.

19.3 Neither party's waiver of any breach or default of any provision of this Agreement shall not constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default.

19.4 Unless expressly provided otherwise herein, rights arising under this Agreement are cumulative and do not exclude rights available by law.

19.5 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions (or the remainder of the provision) shall remain in full force and effect.

19.6 This Agreement does not confer any rights on any third person or party.

19.7 The parties expressly agree that they are independent contractors. Nothing in this Agreement is intended to or shall be interpreted to create a partnership or a joint venture between the parties or authorize either party to act as agent for the other.

19.8 The Customer shall not, without the prior written consent of Portnox, assign, transfer, or sub-contract this Agreement and/or any of its rights or obligations under this Agreement; provided, however, no consent shall be required with respect to an assignment by Customer as a part of a transfer by merger, acquisition, stock transfer or other consolidation of the Customer with another entity, or sale of all or substantially all of Customer's assets. Any unauthorized assignment shall be null and void. Portnox may, at any time, assign, transferor sub-contract any of its rights or obligations under this Agreement.

19.9 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.:

Notices to Portnox should be addressed to [email protected].

19.10 Portnox may provide Customer with notice via email, regular mail and/or postings on Portnox's website. Notices to Portnox should be sent to address set forth above. Notices will be deemed given within 5 days from the delivery date if sent by mail, or within 1 day from the delivery date if send by a courier or delivered by hand.

Human rights are valued throughout our organization, regardless of location. Portnox is committed to preventing acts of modern slavery and human trafficking from occurring within its business and supply chain, and we follow all international labor and immigration laws wherever we conduct business and where applicable. We have a zero-tolerance approach to modern slavery and human trafficking and are committed to acting with integrity in all our business dealings and with our supply chain, including business partners, suppliers, contractors and other third parties who provide or deliver any goods or services to us. We will not support or deal with any business that is knowingly involved in any form of slavery and/or human trafficking and will take steps to ensure transparency within our business and supply chain. Our supplier guidelines forbid the use of child labor, forced labor, and discrimination; protect employees’ rights to freedom of association and collective bargaining, where applicable; and describes how vendors and suppliers should work with us on compliance and enforcement matters.

This statement has been approved by the Portnox, Inc. board of directors consistent with section 54(1) of the Modern Slavery Act of 2015 and constitutes our modern slavery and human trafficking statement for the financial year ending December 31, 2022. If you have questions or need assistance regarding this statement, please contact [email protected].
This statement was approved by the Board of Directors on April 27, 2022.

Denny LeCompte
Chief Executive Officer

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