Agreement Express
These terms are inapplicable to customers who signed contracts starting on or after March 1, 2024 and that incorporate by reference the terms at https://www.nmi.com/legal/
Agreement Express Inc.’s General Terms and Conditions (“General Terms”)
Updated: March 2021
Upon Customer’s signature on an applicable Sales Order, the terms set forth below combined with the terms of the Sales Order, Information Security Guidelines and any Statement of Work form a binding contract between the Customer and AEX with respect to any and all services performed by AEX for Customer pursuant to such terms and are collectively referred to as the “Agreement” herein as between AEX and Customer.
Capitalized terms used in these General Terms shall have the following meanings:
“AEX” means Agreement Express Inc.
“AEX Content” means all Content made available by AEX to Customer in connection with Customer’s use of the Subscription Service.
“AEX Platform” means the online proprietary platform hosted by AEX and comprised of proprietary algorithms, software, and other technologies that allow Customer to remotely integrate, distribute, digitally sign, and track documents.
“AEX Services” or “Services” means either or both of the Subscription Services and/or Professional Services. “AEX Technology” means the AEX Platform, Subscription Services, the Documentation and all AEX and its Affiliate’s Intellectual Property Rights therein or associated therewith.
“Affiliate(s)” with respect to a Party means another entity controlled by, controlling or under common control with such Party, where “control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than 50% of the aggregate of all voting interests in such entity. Such other entity is an Affiliate only during the period that such “control” exists.
“Agreement” means these General Terms, the Sales Order, SOW(s) (each including all exhibits, schedules and other attachments) and the Information Security Guidelines.
“Content” means text, images, documents, materials, and all other forms of data or communication. “Customer Content” means all Content made available by Customer or its Users to AEX for use in connection with the Services or generated by Customer via use of the Services and includes, without limitation, all of Customer’s contracts and agreements to be digitally signed in connection with the Subscription Service. “Documentation” means any written documentation provided to Customer by AEX which are related to and describe any AEX Services.
“Intellectual Property” or “Intellectual Property Rights” collectively means any and all patents, patent registrations, patent applications, data rights, utility models, business processes, trademarks or names, service marks or names, trade secrets, know how, mask works, copyrights, moral rights and any other form of proprietary protection arising or enforceable under the laws of the United States, any other worldwide jurisdiction or any bilateral or multi-lateral treaty recognizing such rights.
“Party” means either AEX or Customer individually and “Parties” refers to AEX and Customer collectively. “Person” means any individual or legal entity.
“Professional Services” means those installation, set-up, integration, configuration, consulting, and/or training services to be provided by AEX as may be specified in an applicable SOW.
“Sales Order” means each Sales Order document signed or digitally accepted by duly authorized representatives of both Parties which incorporates these General Terms and the Information Security Guidelines and identifies the specific Services ordered by Customer, pricing therefore and other terms applicable to the AEX Services. “Statement of Work” or “SOW” shall mean a Statement of Work signed or digitally accepted by duly authorized representatives of both Parties which incorporates these General Terms Information Security Guidelines and identifies the specific terms and scope of the Professional Services ordered by Customer.
“Subscription Service” means the services offered through the AEX Platform provided by AEX as described in, and pursuant to, a Sales Order, for the benefit of Customer.
“Users” means each employee or contractor of Customer who has been granted access to the Subscription Service with the right to publish documents, Customer Content or access the “Agreement Workspace” portion of the Subscription Service.
“Work Product” means any materials, deliverables, programs, interfaces, modifications, configurations, reports, analyses or documentation developed by AEX on behalf of Customer and delivered to Customer in the performance of, and as described in the AEX Services or any Professional Services.
1. SERVICES
1.1 Services. AEX shall provide Customer with the applicable AEX Services as specified on a Sales Order and/or SOW.
1.2 Use of Subscription Services. The Subscription Services may only be used pursuant to the Agreement. The license and permitted use terms with respect to the Subscription Services will be set forth in the applicable Sales Order. AEX reserves all rights not expressly granted to Customer under the Agreement. AEX shall be free to use the ideas, concepts, techniques and know-how used and developed in connection with AEX’ offering of the Subscription Services.
1.3 Restrictions on Use. Customer agrees that neither it, nor its employees, agents or contractors will: (a) use any of the AEX Services in a manner that violates any applicable law or regulation; (b) decompile, reverse engineer, disassemble or otherwise reduce the AEX Technology to a human perceivable form or permit any other party to do so; (c) copy, modify, adapt, translate, rent, lease, sublicense, loan, resell, distribute, time-share, or create and derivative work of the AEX Technology; (d) permit works based on the AEX Technology; (e) create derivative works based on the AEX Technology; (f) copy, frame, or mirror any part of the AEX Content or Subscription Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes as specifically authorized by AEX; or (g) use, provide access to, adapt, copy or otherwise exploit any AEX Technology or AEX Confidential Information (including any features, functions or graphics) in any way that would replace or obviate Customer’s need for the AEX’ products or services, or directly or indirectly compete with AEX’ products and services. Customer also may not permit or enable any other Person to do any of the foregoing. No Person other than Customer and the authorized Users, as specifically set forth in the applicable Sales Order may use or access the Subscription Services. All payments due AEX are based on the use of the applicable Services solely by AEX and the authorized Users.
1.4 Information Security and Privacy Policy. AEX will comply with the information security terms set forth on at the end of this document and AEX’s Privacy Policy as set forth at: https://agreementexpress.com/privacy/.
2. FEES; PAYMENT TERMS
2.1 Fees. All fees and charges will be set forth in the applicable Sales Order.
2.2 Payment. All fees, charges and expenses invoiced under the Sales Order will be due and payable by Customer in United States currency within thirty (30) days of the date of the invoice. Each invoice will set forth in reasonable detail the work covered by the invoice and the applicable fees. All fees payable under the Sales Order are exclusive of tax. Customer shall pay any taxes, including sales, use, personal property, value added, excise, customs fees or other taxes and duties imposed with respect to all Services under this Agreement, excluding only income taxes payable by AEX. Late payments shall accrue interest from the date due until the date paid at a rate of one percent (1%) per month, or the maximum rate allowed under applicable law, whichever is less. All payments under the Sales Order may be by electronic transfer pursuant to instructions provided by AEX or as set forth in the Sales Order.
3. CONFIDENTIALITY
3.1 Confidential Information. Each Party receiving information from the other Party (the “Receiving Party”) will not disclose or disseminate to any other person or entity, or use except as permitted by these General Terms, any information regarding the business, data, processes, technology, software or products of the Party disclosing information under these General Terms (“Disclosing Party”) and of third parties obtained during the course of performance under these General Terms (the “Confidential Information”). Each Receiving Party will ensure that any Confidential Information obtained from the Disclosing Party will be disclosed only to the Receiving Party’s employees and agents and only on a “need-to-know” basis, and that such employees and agents will be subject to a binding written obligation to maintain and not use (except as necessary to satisfy obligations under these General Terms) the confidentiality of the Confidential Information similar to the obligations under these General Terms. Nothing contained herein will be construed to restrict or impair in any way the right of the Receiving Party to disclose or communicate any information which Receiving Party can prove (a) is at the time of its disclosure hereunder generally available to the public; (b) becomes generally available to the public through no fault of the Receiving Party; or (c) is acquired by the Receiving Party from any third party having a right to disclose it to the Receiving Party. In the event that Receiving Party or anyone to whom Receiving Party has transmitted the Confidential Information pursuant to these General Terms becomes legally compelled to disclose any of the Confidential Information, Receiving Party will provide to the other promptly, written notice of such demand so that it may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these General Terms. In the event that such protective order or other remedy is not obtained, or that Disclosing Party waives compliance with the provisions of these General Terms, Receiving Party will furnish only that portion of the Confidential Information which is legally required and will exercise its best efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
3.2 Injunctive Relief. Notwithstanding any other provision of these General Terms, neither of the Parties will use any of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of these General Terms that may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or equity, the Disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
3.3 Proprietary Rights. As between the Parties, (a) each Party retains ownership to its Confidential Information, (b) AEX shall exclusively own all right, title and interest in and to the AEX Technology (and all of the underlying technology, software and analytics) and AEX Content, any models, methods, algorithms, discoveries, inventions, modifications, customizations, derivatives, materials, ideas and other work product that is conceived, originated or prepared in connection with the Services, AEX Technology or related to these General Terms, and all related Intellectual Property Rights, and (c) Company shall exclusively own all right, title and interest in and to any Customer Content provided by Customer. Customer shall not remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Subscription Services or AEX Technology. 3.4 Right to Use of Customer Content. Customer hereby grants to AEX a worldwide, non-exclusive, non transferable (except as expressly provided herein), fully-paid license and right to use the Customer Content to provide, improve or extend the AEX Technology and Subscription Services and other Services, including the right to perform research and development activities and to develop, provide and improve the Subscription Services and to offer additional services if allowed by Customer and applicable law.
4. LIMITED WARRANTY
4.1 Warranties. Each Party represents and warrants to the other: (a) that it is a corporation duly organized and existing under the laws of the state of its incorporation; (b) that it has the right to enter into the Sales Order including acceptance of the rights and obligations set forth in these General Terms; and (c) that its entry into the Sales Order including acceptance of the rights and obligations set forth in these General Terms will not cause a breach of its contractual obligations to third parties.
4.2 Subscription Services Warranties. All warranties applicable to the Subscription Services will be set forth in the applicable Sales Order.
4.3 Professional Services Warranties. All warranties applicable to the Professional Services will be set forth in the applicable SOW.
4.4 Disclaimer of Warranties. EXCEPT FOR THE FOREGOING EXPRESS WARRANTIES IN THE SALES ORDER AND THESE GENERAL TERMS, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, UNDER THE SALES ORDER OR THESE GENERAL TERMS AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES REGARDING MERCHANTABILITY, DESIGN, FITNESS FOR PURPOSE, NON INFRINGEMENT, ACCURACY CORRECTNESS OR COMPLETENESS OF DATA OR CORRESPONDENCE WITH DESCRIPTION AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AEX DOES NOT WARRANT THAT THE SERVICES, INCLUDING THE SUBSCRIPTION SERVICES PROVIDED HEREUNDER OR THE AEX TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR OPERATE UNINTERRUPTED, ERROR-FREE, THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WITHOUT DELAY. THE SERVICES, INCLUDING THE SUBSCRIPTION SERVICES PROVIDED HEREUNDER OR THE AEX TECHNOLOGY ARE PERFORMED AND PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. NO AGENT OF AEX IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF AEX AS SET FORTH HEREIN.
5. INDEMNIFICATION AND INSURANCE
5.1 AEX Indemnification. AEX shall defend, indemnify and hold harmless Customer and its employees, directors and officers and agents (collectively the “Customer Indemnitees”), from and against any and all third-party claims, actions, suits, investigations, governmental action, liabilities, judgments, demands, losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of: (a) infringement of the Subscription Services upon any third-party Intellectual Property Right recognized by the United States; or (b) any breach by AEX of Section 3 of these General Terms. AEX shall have no obligation to indemnify Customer for infringement claims to the extent based upon (i) any unauthorized use of the Subscription Services, (ii) the combination, operation or use of the AEX Technology or Subscription Services provided by the Customer with software, hardware, data or other technology or services not supplied by AEX; or (iii) modifications to the AEX Technology or Subscription Services that were not performed by AEX, or specifications, designs or other content not supplied by AEX. Should AEX Technology or Subscription Services become, or in AEX’ opinion be likely to become, the subject of a claim for infringement, AEX shall at its sole option and expense, (1) procure Customer the right to continue to use the AEX Technology or Subscription Services, (2) modify or replace the AEX Technology or Subscription Services with an offering that has comparable functionality to the AEX Technology or Subscription Services, so that the AEX Services or Subscription Services becomes non-infringing, or in the event options (1) and (2) are not reasonably available, (3) terminate any applicable Sales Order and discontinue the Subscription Services and Customer’s use of any AEX Technology. AEX reserves the right to modify the Subscription Services and/or AEX Technology at any time to make them non infringing. The foregoing remedies constitute Customer’s sole and exclusive remedies and the AEX’ entire liability with respect to infringement claims or actions.
5.2 Customer Indemnification. Customer shall defend, indemnify, and hold harmless AEX and its employees, directors, officers and agents (collectively the “AEX Indemnitees”), from and against any and all third party claims, actions, suits, investigations, governmental actions, liabilities, judgments, demands, losses, damages, costs or expenses, including reasonable attorneys’ fees, arising out of: (a) any unauthorized use by Customer of the AEX Technology or Subscription Services or breach of Customer’s warranties regarding any Customer Content; or (b) any breach by Customer of Section 3 of the General Terms.
5.3 Indemnification Procedures. A Party’s right to indemnification under this Agreement (such Party referred to herein as an “indemnified party”) is conditioned upon the following: (a) prompt written notice to the Party obligated to provide indemnification (such Party referred to herein as an “indemnifying party”) of any claim, action or demand
for which indemnity is sought; (b) control of the investigation, preparation, defense and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party, at the indemnifying party’s request and expense, in the defense of the claim.
5.4 Insurance. AEX agrees to carry and maintain during the Term, at its own cost, the insurance policies and coverage amounts set forth below. AEX shall maintain such insurance with companies that are rated a minimum of A VII in AM Best’s Insurance Rating Guide or as are otherwise commercially reasonable for the scope and engagement between Customer and AEX. Upon Customer’s request, AEX shall provide evidence of such insurance and the certificates of insurance and AEX shall provide at least thirty (30) days advance written notice to Customer of any cancellation in such insurance coverage.
a. Statutory worker’s compensation in accordance with applicable state laws.
b. Employer’s liability insurance in an amount of not less than $1,000,000 each accident, each employee and policy limit.
c. Commercial general liability, including bodily injury, property damage, owners and contractor’s protective liability, products and completed operations liability and contractual liability, with a per occurrence limit of not less than $2,000,000 and a general aggregate limit of not less than $5,000,000.
d. Professional Liability – “Tech Risk” errors and omissions insurance in an amount of not less than a $5,000,000 aggregate limit.
e. Commercial Crime in a total combined limit of primary and excess coverage, any one occurrence of not less than fifty thousand Dollars ($50,000);
f. Automotive liability covering all vehicles non-owned or hired and leased with a combined single limit for bodily injury and property damage of not less than $1,000,000.
6. LIMITATION OF LIABILITY.
6.1 Limitation On Types of Recoverable Damages. EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 5 OR ANY VIOLATION OF AEX’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS), REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 6.2 Limitation on Maximum Damages. EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 5, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR DAMAGES UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR OTHERWISE) FOR THE APPLICABLE SERVICE IN EXCESS OF THE TOTAL FEES PAID BY CLIENT TO THE COMPANY DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
7. TERM
7.1 Term. The term for the Subscription Services shall be as set forth in the Sales Order (the “Term”) and shall commence as of the Activation Date and shall automatically renew for an additional term equal to the initial period (“Renewal Term”), unless either Party provides written notice to the other at least thirty (30) days prior to the end of the Term or any Renewal Term.
7.2 Termination. Either Party may terminate a Sales Order and the effect of these General Terms upon the occurrence of any of the following events: (a) a breach by the other Party of any material provision of these General Terms or the Sales Order or numerous breaches of duties or obligations thereunder that cumulatively constitute a material breach of the General Terms or Sales Order, and the breaching Party fails to cure such breach(es) within thirty (30) days from receipt of written notice from the non-breaching Party identifying such breach(es); or (b) if the other Party ceases to conduct business in the ordinary course or is declared insolvent or bankrupt, or makes an assignment of substantially all of its assets for the benefit of creditors, or a receiver is appointed, or any proceeding is demanded by, for or against the other Party under any provision of bankrupt or insolvency legislation. 7.3 Effect of Termination. Upon the expiration or termination of the Sales Order and these General Terms: (a) Customer will have no further rights with respect to the Subscription Services and/or AEX Technology; (b) Customer agrees to exercise due diligence and care to remove all copies of any AEX Technology including any software used in conjunction with the Subscription Services from Customer controlled hardware and to return to AEX all documentation, electronic disk and electronic tape media or other materials delivered to Customer under the Sales Order and General Terms; (c) AEX agrees to exercise due diligence and care to remove all copies of any of Customer Content used in conjunction with the Subscription Services and to return to Customer all documentation, electronic disk and electronic tape media or other materials delivered to AEX under the Sales Order and these General Terms; (d) all fees due or payable as of the termination date shall become immediately due; and (e) all fees earned or unpaid as of the Activation Date of termination shall become immediately payable to AEX. 7.4 Survival. Sections 5.1, 5.2, 5.3, 6 (all sections), 7.3, 7.4 and 8 (all sections) of these General Terms will continue in effect after termination of the Agreement.
8. PROVISIONS OF GENERAL APPLICABILITY
8.1 Independent Contracting Parties. Nothing in the Agreement creates a joint venture, partnership, principal agent or mutual agency relationship between the Parties. No Party has any right or power under the Agreement to create any obligation, expressed or implied, on behalf of the other Party or to act for or bind the other party in any manner, except as expressly provided for in the Agreement. No employee of a Party will be deemed to be an employee of the other Party by virtue of the Agreement. As an independent contractor, AEX and its employees, agents or contractors shall not participate in, nor be eligible under, any of Customer’s employee benefit plans, nor shall AEX receive any other employee benefits from Customer.
8.2 Assignment. Neither Party may assign or subcontract its rights or obligations under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign its rights under the Agreement to an Affiliate or a party purchasing the portion of such Party’s business to which the Agreement relates, whether by merger, asset sale, stock sale or otherwise, without the other Party’s consent. Further, AEX may perform any or all of its obligations through an Affiliate or a third-party contractor so long as AEX remains responsible for such obligations.
8.3 Non-Waiver. Neither Party will, by the lapse of time, and without giving written notice, be deemed to have waived any of its rights under the Agreement. No waiver of a breach of the Agreement will constitute a waiver of any prior or subsequent breach of the Agreement.
8.4 Order of Precedence. In the case of any conflict between the provisions of the General Terms, Sales Order or SOW, with respect to the subject matter of the given Sales Order, the provisions of these General Terms shall control, then the Sales Order, then the SOW.
8.5 Notices. Notices given under the Agreement must be in writing and must be (a) served personally, or (b) delivered by first class U.S. mail, certified or registered, postage prepaid and addressed to the addressees set forth in the Sales Order, or (c) delivered by overnight courier service, addressed to the addressees as set forth therein. Notices will be deemed received at the earlier of actual receipt in the case of personal service, overnight courier, or U.S. Mail delivery. The Parties may change their addresses in the Sales Order by giving notice of such change to the other Party as provided in this Section.
8.6 Media Releases. All media releases, public announcements, or public disclosure for general distribution (including, but not limited to, promotional or marketing material) by either Party, or by their employees or agents, relating to the Agreement, its existence, terms or subject matter, other than general statements that a contractual relationship exists between the Parties, will be coordinated with and approved in writing by the other Party prior to its release.
8.7 Use of Trademarks. Any use of AEX’ trademarks or service marks is subject to Customer’s submission of the proposed use in each instance and AEX’ right to review and approve such proposed use. 8.8 Severability. If any part of the Agreement is found to be illegal or unenforceable, then that part will be curtailed only to the extent necessary to make it, and the remainder of the General Terms and/or Sales Order as applicable, are legal and enforceable.
8.9 Governing Law. The Agreement and the rights and obligations of the Parties hereunder shall be governed, construed and interpreted solely and exclusively in accordance with the laws of the State of Wisconsin, without giving effect to any laws which would result in the application of the laws of another jurisdiction. 8.10 Attorney’s Fees. The prevailing Party in any action, claim or lawsuit brought pursuant to the General Terms and/or Sales Order is entitled to payment of all attorneys’ fees and costs expended by such prevailing Party in association with such action, claim or lawsuit.
8.11 Cooperation. In order for AEX to perform its obligations under the Agreement, Customer must provide AEX with full, good faith cooperation and access to such information as may be required by AEX including providing correct, accurate and complete data, office accommodations, facilities, equipment, and security access; personnel assistance as may be reasonably requested by AEX from time to time; cooperation with AEX, making decisions and communicating information in a timely manner. Customer acknowledges and agrees that AEX’ performance of any Services is both contingent and dependent upon such cooperation by Customer.
8.12 Force Majeure. Notwithstanding anything to the contrary herein, AEX shall not be deemed to be in default of any provision of the Agreement, or be liable to Customer or to any third party for any delay, error, failure in performance or interruption of performance due to any act of God, war, insurrection, acts of terrorism, riot, boycott, strikes, interruption of power service, interruption of Internet or communications service, labor or civil disturbance, acts of any other person not under the control of AEX or other similar causes (“Force Majeure Event”). AEX shall give Customer reasonable written notification of any material or indefinite delay due to such causes. 8.13 Headings. The titles or captions used in the Agreement are for convenience only and will not be used to construe or interpret any provision hereof.
8.14 Authority. Each person signing below represents and warrants that he or she has the necessary authority to bind the principal set forth below.
8.15 Compliance. Customer agrees to comply with all pertinent laws of the United States, including, but not limited to, the Securities and Exchange Act of 1933 and 1934, Trust Indenture Act of 1939, Investment Company Act of 1940, Securities Investor Protection Act of 1970 (SIPA), Sarbanes-Oxley Act of 2002, Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and any regulations and/or guidelines promulgated by the Securities and Exchange Commission, and the laws of the country in which Customer obtains the Subscription Services, in connection with its activities under the Agreement. Customer will comply with all applicable laws and regulations (including any applicable laws and regulations relating to financial and brokerage institutions. In the event Customer uses AEX Technology and/or the Subscription Services to obtain, store, process or in any manner transmit personal data of any person, Client covenants to fully comply with the data protection laws applicable in the State of California, the European Union or in any other U.S. States or countries regarding storage, processing and transfer of personal data.
8.16 International Terms. The United Nations Convention on Contracts for International Sale of Goods is hereby excluded. All prices are stated in and all payments shall be made in United States Dollars. The official text of the Agreement shall be the English language, and such English text shall be controlling in all respects, notwithstanding any translation hereof required under the laws or regulations of another country. All notices, requests, communications and proceedings under the Agreement shall be in the English language.
8.17 Entire Agreement. The Agreement constitutes the final written agreement and understanding of the Parties with respect to terms and conditions applicable to all Services including the Subscription Services and Customer’s use of AEX Technology. These General Terms shall supersede all other representations, agreements, proposals, and understandings, whether oral or written, which relate to the Services including the Subscription Services and customer’s use of AEX Technology and all matters within the scope of the Agreement. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in the Agreement shall, with respect to the Services including the Subscription Services and Customer’s use of AEX Technology, supersede any separate non-disclosure agreement that is or may in the future be entered into by the Parties hereto. Any additional, supplementary, or conflicting terms supplied by the Customer, including those contained in purchase orders or confirmations issued by the Customer, are specifically and expressly rejected by AEX unless an authorized officer of AEX expressly agrees to them in a signed writing.
8.18 Counterparts. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The Sales Order may be signed in any number of counterparts, each of which will be an original, with the same effect as if the signatures hereto were upon the same instrument.
Agreement Express Inc.’s
Information Security Guidelines
Updated: May 2019
Capitalized terms not otherwise defined herein shall have the meanings ascribed in the Agreement Express General Terms and Conditions.
1. Information Security Guidelines. Company shall have and adhere to commercially reasonable written information security guidelines for maintaining security controls and shall reasonably discuss such guidelines with Customer. Company’s information security guidelines shall include physical, administrative and technological controls. The controls should relate to the collection, maintenance (including access rights), transmittal and disposal of Personally Identifiable Information or “PII” (as defined below), and should include training, oversight, tests for vulnerabilities, checks of the systems and measures to prevent and detect unauthorized access. At a minimum, the information security guidelines shall include: (i) a written plan to assess and manage system failures; (ii) a regular assessment of data security risks and revision of guidelines to address identified risks; and (iii) notice and incident response procedures.
2. Further Protections. With respect to all employees, agents or third party contractors of Company who at any time have access rights to Personally Identifiable Information, Company agrees as follows: (i) to limit such access to only those employees, agents or third parties with a need for such access in order to perform Company’s obligations under this Agreement; (ii) prior to allowing any employee, agent or third party to have access to the Personally Identifiable Information, Company will advise (via training or other processes designed to acquaint such person with the security guidelines/programs instituted by Company) such employee, agent or third party of the confidential and sensitive nature of such information; and (iii) Company shall remain responsible for its compliance and the compliance of all its employees, agents and third parties with the obligations under this Agreement. Company also requires any of its employees with access to Personally Identifiable Information to undergo criminal and other background checks prior to allowing their access to Personally Identifiable Data.
3. Penetration Testing. At least twice each year during the Term of this Agreement, Company will require a reputable third party to conduct a penetration test of Company’s infrastructure designed to detect any material security weaknesses, including vulnerability scans related to such infrastructure. Company will use a reputable third party to conduct such testing that is certified by recognized industry standards as being qualified to perform penetration testing as contemplated by this Agreement. Company will reasonably discuss the results of such testing with Customer in a general nature so as not to expose any potential vulnerabilities to broader disclosure and, to the extent any such material weakness is found, will take appropriate action, promptly under the circumstances, to remedy such weakness.
4. Certification Report. Company will on an annual basis during the Term of this Agreement, at Customer’s written request, provide to Customer a copy of the most recent report or certification based upon Payment Card Industry Standards, SOC 2 Type II, or such other recognized industry certification or report on information security covering the data center used to host the Subscription Services (“Certification Report”). Company will not engage a third party to host data or Subscription Services such that Personally Identifiable Information is stored or maintained on such third party’s servers without requiring such third party to adhere to an annual certification on information security comparable to that described in this Section 4. For the avoidance of doubt, co-location facilities in which Company leases space, equipment and/or power supply from a third party, but Company maintains control over the use and access of the servers and computers, does not constitute a third party hosted server. With respect to Company’s and its Affiliate’s Subscription Services hosted on a third-party data center, the Certification Report will apply to the third-party data center used to host such Subscription Services and store the Personally Identifiable Information, and may be different from the Certification Report with respect to Company or its Affiliates themselves. Company may only provide Personally Identifiable Information to third parties who have a Certification Report.
5. Retention and Transmission. Company shall, upon the written request of Customer, encrypt any Personally Identifiable Information stored on its information systems and/or as transmitted by Company to Customer, but Company may only provide Personally Identifiable Information to third party contractors who either i) have Certification Report; or ii) are in compliance with Section 2 above.
6. Notification. Company shall notify Customer promptly under the circumstances, however in no event earlier than the latest of the following: (i) as required by law; or (ii) two (2) business days after discovering such event; or (iii) the date law enforcement officials, if involved in investigating the event, authorize such notification, of any unauthorized access or acquisition of Personally Identifiable Information or misuse or a reasonable belief of misuse of Personally Identifiable Information, by an unauthorized third party. This notification will state in reasonable detail the Personally Identifiable Information at risk, and each Party agrees to take all actions reasonable under the circumstances necessary to immediately prevent the continued unauthorized access of such information. Company further agrees that, in the event of an unauthorized access to Personally Identifiable Information, it will work in good faith and cooperate with Customer to address the breach, including an investigation of the unauthorized access in a manner mutually agreed by the Parties.
7. Personally Identifiable Information. For purposes of this Agreement, “Personally Identifiable Information” shall mean any of the following unencrypted information, alone or in combination: i) a person’s first name or initial and last name; ii) credit and debit card numbers; (iii) personal financial and/or tax information; (iv) home address; (v) Social Security Number (US) or Social Insurance Number (Canada); (vi) family or relatives names; (vii) bank or brokerage account information including account numbers; (viii) e-mail address and IP Address or or unecnrypted data provided by Customer that may allow identification of any of the foregoing. The term does not include publicly available information that is lawfully made available to the general public from federal or state or provincial Canadian government records, or obtained by Company independent of the customer.