US TERMS AND CONDITIONS
1 Definitions and Interpretations
The definitions and rules of interpretation in this clause apply in these US Terms and Conditions.
(a) “Agreement” means the agreement between Smoothwall and the Customer for the sale and purchase of the Products and Services in accordance with these US Terms and Conditions, the Quotation, the Software Licence, Support Agreement, Hardware Limited Warranty, Third Party Software Licence, Open Source Software Licence and Partner Agreement (to the extent the Customer is a Partner).
(b) “Applicable Law” means all applicable laws, regulations, regulatory requirements and codes of practice each as applicable and as amended, supplemented, substituted or replaced from time to time.
(c) “Business Day(s)” means Monday to Friday except for public holidays in the United States of America.
(d) “Business Hour(s)” shall mean 8.30am to 5.00 pm (in the ti time) inclusive on any Business Day.
(e) “Confidential Information” means any information that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party including any personal data together with all information derived by the receiving party from any such information.
(f) “Customer” means the party identified as the Customer in the Quotation or the Partner.
(g) “Customer Data” means all personal data in whatever form or medium which is:
(i) disclosed, supplied, or in respect of which access is granted, to Smoothwall whether by, or on behalf of, Customer or otherwise in connection with the Services; or
(ii) produced or generated by or on behalf of Smoothwall in connection with the Services.
(h) “Data Breach” means any event that results, or may result in, any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data transmitted, stored or otherwise processed by Smoothwall or an Other Processor.
(i) “Data Protection Law” means the Data Protection Regulation and/ or any other applicable data privacy or data protection laws and regulations each as applicable and as amended, supplemented, substituted or replaced from time to time.
(j) “Data Protection Regulation” means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
(k) “Hardware” means Smoothwall Hardware and Third Party Hardware.
(l) “Initial Term” means the initial term set out in the Quotation.
(m) “Open Source Software” means all software which comprises part of the Products or Services that has been licensed by its authors or owners under an Open Source Software Licence.
(n) “Open Source Software Licence” means such applicable public licence terms and conditions by which the authors grant to the general public a right to use their software freely and allows such software to be changed and shared (in modified or unmodified form) by anyone such as the GNU General Public License, the GNU Lesser General Public License (LGPL).
(o) “Other Processor” has the meaning given in clause 15.4(e);
(p) “Partner” means a party with whom Smoothwall has entered into a Partner Agreement.
(q) “Partner Agreement” means the partner agreement entered into between Smoothwall and the Customer (if the Customer is a Partner).
(r) “Price” means the price payable for the Products and Services set out in the Quotation.
(s) “Products” means such Hardware and Software including any Open Source Software that is incorporated and forming part thereof and Third Party Software as set out in the Quotation.
(t) “Proprietary Rights” means any registered or unregistered letters patent, patented articles, designs, trademarks, copyright in all specifications, drawings and technical descriptions, computer software and databases, database rights, moral rights, inventions whether or not capable of protection by patent or registration, rights in commercial information and technical information, including know-how, research and development data, manufacturing methods and data, specifications and drawings, formulae, algorithms, prototypes and research materials, and other intellectual property rights, whether registered or unregistered and including applications for the grant of any such assets or rights of the foregoing descriptions and all rights or forms of protection having equivalent or similar effect anywhere in the world.
(u) “Quotation” means the document issued by Smoothwall or the Partner (if applicable) to the Customer that sets out the Products and/or Services, the length of the Initial Term, Price and payment terms.
(v) “Renewal Term” shall have the meaning set out in clause 4.1.
(w) “Services” means the services or Support Services set out in the Quotation to be provided by Smoothwall to the Customer in accordance with this Agreement.
(x) “Smoothwall” means Smoothwall Inc. which is a North Carolina Corporation (ID Number: 1053114) of: 8008 Corporate Center Drive, Ste 410, Charlotte, North Carolina, 28226-4489, United States of America, or any subsidiary or associated company.
(y) “Smoothwall Hardware” means all Smoothwall branded hardware provided as part of and for use in the provision of the Software, Third Party Software, Open Source Software and Services including information and communication technology, network components and other computing devices.
(z) “Software” means all proprietary software, excluding Third Party Software, owned by Smoothwall, licensed to the Customer pursuant to the Software Licence, save for any Open Source Software that is incorporated and forming part thereof, and which comprises part of the Products or Services.
(aa) “Software Licence” means the software license granted to the Customer by Smoothwall governing the use that the Customer may make of the Software.
(bb) “Standard Contractual Clauses” means the contractual clauses required by Data Protection Law for the international transfer of personal data as amended from time to time by competent authorities;
(cc) “Supervisory Authority” means any competent data protection authority including under the Data Protection Regulation.
(dd) “Support Agreement” means the agreement for the provision of Support Services set out at Appendix B to these US Terms and Conditions.
(ee) “Support Services” means the maintenance and technical support services to be provided in accordance with the Support Agreement.
(ff) “Tax” means any tax, levy, import, duty, charge or fee wherever applicable including brokerage or customs clearance fees.
(gg) “Third Party Hardware” means hardware other than Smoothwall Hardware manufactured or supplied by a third party and provided as part of and for use in the provision of the Software, Third Party Software, Open Source Software and Services including information and communication technology, network components and other computing devices.
(hh) “Third Party Software” means all proprietary software, excluding all Open Source Software, owned by or licensed to the Customer from a third party (whether or not supplied by Smoothwall) pursuant to the Third Party Software Licence and which comprises part of the Products or Services.
(ii) “Third Party Software Licence” means the software license granted to the Customer by a third party governing the use that the Customer may make of the Third Party Software, which is available to the Customer from Smoothwall on request.
(jj) “US Terms and Conditions” means these terms and conditions.
(a) Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
(b) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(c) A reference to writing or written includes email.
(d) References to clauses are to the clauses of these US Terms and Conditions unless otherwise stated.
(e) General words (such as, for example, includes and including) shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words.
(f) A change in the legal status of the parties shall not affect the validity of the Agreement and the Agreement shall be binding on the parties and their respective permitted successors and assignees.
(g) In the event of a conflict between the various constituent parts of the Agreement, the following order of precedence will apply:
(i) the Quotation;
(ii) the Partner Agreement (if the Customer is a Partner);
(iii) the US Terms and Conditions;
(iv) the Software Licence;
(v) Support Agreement;
(vi) the Hardware Limited Warranty;
(vii) the Third Party Software Licence; and then
(viii) the Open Source Software Licence.
2 Application of Conditions
2.1 These US Terms and Conditions incorporate the Quotation, the Software Licence, the Support Agreement, the Hardware Limited Warranty, the Third Party Software Licence, the Open Source Software Licence, each where relevant Products and Services are provided under the Agreement.
2.2 The Partner Agreement and Appendix A to these US Terms and Conditions apply to and are incorporated into the Agreement where the Customer is a Partner.
3 Basis of Sale
3.1 The Quotation constitutes an invitation to treat by Smoothwall or the Partner (if applicable). The Quotation shall not constitute an offer by Smoothwall or the Partner (if applicable) to provide the Products and Services.
3.2 If Customer wishes to place an order they must specify the Quotation number at the time of ordering and provide a signed copy of the Quotation. The order constitutes an offer by the Customer to purchase the Products and Services in accordance with the Agreement. The Customer is responsible for ensuring that the terms of an order are complete and accurate. Smoothwall or the Partner (if applicable) is not obliged to accept any order by the Customer. The order shall not form part of this Agreement.
3.3 The order shall only be deemed accepted when Smoothwall or the Partner (if applicable) confirms the order in writing at which point the Agreement shall come into existence.
4 Term of the Agreement
4.1 The Agreement shall continue for the Initial Term unless terminated earlier in accordance with the terms of the Agreement. At the end of the Initial Term and each subsequent Renewal Term, the Agreement will automatically renew for a further 12 months (the Renewal Term), unless the Customer confirms in writing that it will not renew, at least 30 days before the expiry of the Initial Term or Renewal Term (as applicable). Smoothwall reserves the right to update the Prices payable under this Agreement in accordance with its then current standard charges on commencement of each Renewal Term.
4.2 In the scenario we extend a license without an order the customer or partner is liable for that period of usage should the license not subsequently be renewed. This will be invoiced at standard 1 year pricing.
5 Delivery of Products and provision of Services
5.1 Smoothwall will use reasonable endeavors to manage and complete the delivery of the Products and provision of the Services in accordance with the Agreement.
5.2 Smoothwall may deliver the Products by separate installments. This will not constitute a separate contract and all installments together form a single indivisible Agreement.
6 Smoothwall Obligations
6.1 Smoothwall shall endeavor to ensure that its staff, while on the Customer’s premises, in connection with this Agreement or the provision of the Products or Services, follow the Customer’s security procedures and health and safety regulations, where notified. Smoothwall will not be liable for any delay or failure to perform its obligations under this Agreement as a result of compliance with the terms of this clause 6.1.
6.2 Smoothwall shall provide the Support Services in accordance with the Support Agreement.
7 Customer Obligations
7.1 The Customer shall:
(a) co-operate with, and provide such accurate information requested by, Smoothwall in all matters relating to the supply and delivery of the Products and the provision of the Services;
(b) take all steps reasonably required to allow Smoothwall to deliver and (to the extent that Smoothwall has agreed to assist in the installation) to install the Products and Services;
(c) properly use the supplied Products or Services and shall provide Smoothwall and its agents and contractors with all reasonable facilities and information to enable Smoothwall to perform its duties under the Agreement; and
(d) promptly report to Smoothwall any suspected defect or error in any Products or Services of which the Customer becomes aware and confirm the details in writing.
8 Title and Risk
8.1 The Customer shall be responsible for the Products once delivered to or collected by Customer (in accordance with clause 5). Notwithstanding clause 12, ownership of the Hardware shall pass to the Customer only after Smoothwall has received in full in cleared funds the full Price together with all Taxes due in respect of the Hardware and any products supplied previously to the Customer have been paid in full.
8.2 Until ownership of the Hardware has passed to the Customer under clause 8.1, the Customer shall
(a) hold the Hardware on a fiduciary basis as Smoothwall’s bailee;
(b) safely store the Hardware so that they remain readily identifiable as Smoothwall’s property;
8.3 Subject to clause 8.4, to the extent the Customer is a Partner, the Customer may resell or use the Hardware in the ordinary course of business (but not otherwise) before Smoothwall receives payment for the Hardware. However, if the Customer resells the Hardware before that time it does so as principal and not as Smoothwall’s agent and title to the Hardware shall pass from Smoothwall to the Customer immediately before the time at which the resale by the Customer occurs.
8.4 The Customer’s right to possession of the Hardware before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 10.4 or clause 19 arise or if the Customer encumbers or in any way charges the Hardware, or if the Customer fails to make any payment to the Smoothwall on the due date.
9.1 All Prices and any additional charges payable under the Agreement are exclusive of delivery, packaging, insurance, Value Added Tax (VAT), or any other applicable Taxes. All such Taxes are payable by the Customer, but if paid by Smoothwall for any reason, Customer shall reimburse Smoothwall immediately on demand.
9.2 The Customer shall pay all costs and reasonable expenses incurred by Smoothwall for:
(a) work carried out by Smoothwall in connection with any fault which is not covered by the Agreement, and
(b) Smoothwall’s reasonable travel and subsistence expenses incurred for the purpose of providing on-site support to Customer under the Agreement.
10 Payment Terms
10.1 Smoothwall or Partner (if applicable and in accordance with the Partner Agreement) may invoice the Customer for the full Price of the Products and Services, as set out in the Quotation, calculated over the Initial Term or Renewal Term (as applicable) prior to the first delivery or part delivery of the Products and Services.
10.2 The Customer must pay each invoice within 30 days of its date unless alternative payment terms are set out in the Quotation, whether or not delivery has taken place. Time for payment shall be of the essence.
10.3 The Customer shall make all payments under this Agreement in full without set-off unless required by law. If a Tax withholding is required by law, the Customer shall pay an amount to ensure that Smoothwall or the Partner (if applicable) receives the same total amount had no such withholding been required.
10.4 If the Customer fails to pay any amount when due, the whole balance then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Smoothwall, Smoothwall shall be entitled to:
(a) terminate the Agreement or suspend any current or future deliveries or downloads or use of Products or Services to the Customer until payment has been made in full; and
(b) charge interest on the amount outstanding from the due date to the date of receipt by Smoothwall (whether or not after judgment), at the annual rate of 3 % above the base lending rate from time to time of Bank of England Late Payment Reference Rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Alternatively, Smoothwall reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.5 Smoothwall reserves the right to withdraw at any time any credit terms previously granted, with the whole of the Customer’s account immediately becoming due for payment.
11.1 Smoothwall warrants that the Services will be supplied:
(a) with reasonable skill and care;
(b) within a reasonable time; and
(c) by means of appropriately qualified and skilled personnel.
11.2 Warranties in respect of the various forms of Software are contained in the relevant licenses and not in this clause 11.
11.3 Warranties in respect of Smoothwall Hardware are contained in the Hardware Limited Warranty applicable to that Smoothwall Hardware and not in this clause 11.
11.4 Nothing in this clause 11 will be construed as a warranty or condition that the operation of any Products or Services will be uninterrupted, error-free or provide a single safeguarding solution. Customer understands and accepts that any software (and information technology and communications products generally) may have errors and may encounter unexpected problems, and accordingly, Customer may experience downtime and errors in the use of the Products or Services. Customer will put in place reasonable internal procedures and processes to enable it to minimize any inconvenience and any adverse impact of any such downtime or error.
11.5 Nothing in this clause 11 will be construed as offering a warranty about the ability of the Products and Services to affirmatively identity or prevent the intended or specific behaviors including but not limited to physical injury or disability, bullying, drug or alcohol use or abuse, sexual activity, sexual abuse, emotional distress, or risk to loss of life. The Customer is solely responsible for further investigating and making any determination about what course of action to take (if any) based upon the Services (including data) provided by Smoothwall.
11.6 The Customer accepts that the Products and Services may not be suitable for the monitoring or screening of all subjects and that if Customer has subjects with special safeguarding or monitoring requirements, they should discuss this with Smoothwall before purchasing the Products or Services. Customer also understands and accepts that the Products and Services are not designed to be used in isolation but rather as a tool within the Customer’s own comprehensive safeguarding and monitoring procedures.
11.7 Except as specifically set out in this clause 11, Smoothwall disclaims and excludes all other conditions, warranties, or other terms implied or incorporated into the Agreement or any collateral contract including but not limited to the warranties of description, design, satisfactory quality and fitness for a particular purpose, or arising from any previous course of dealing, usage or trade practice in relation to the Products and Services.
12 Proprietary Rights
12.1 Except as set out in clause 8, the Customer hereby acknowledges that any Proprietary Rights in any Product or Service, shall always, as between Customer and Smoothwall, vest and remain vested in Smoothwall. Customer shall not own any Software.
12.2 Smoothwall grants to the Customer the Software Licence in respect of the Software and uses reasonable endeavors to procure for the Customer the Open Source Software Licence in respect of the Open Source Software and the Third Party Software Licence in respect of the Third Party Software.
12.3 The Customer hereby undertakes to fully comply with the Software Licence, Open Source Software Licences, and the Third Party Software Licences. Failure to comply with (or execute, where necessary) such licenses could result in their revocation (or were not executed, refusal to grant the licenses).
13.1 Except as set out in clause 4.1 or 13.2, any amendments to the Agreement shall be agreed in writing between the parties, such as in respect of any additional services to be provided by Smoothwall.
13.2 Smoothwall reserves the right to increase Prices which include estimates of likely use or scope which are fully or partially based on information provided by the Customer, in circumstances in which information provided by the Customer is inaccurate or materially differs to the actual use or scope. Smoothwall shall provide notice to the Customer of any increase in Prices in writing.
14 Confidentiality and Publicity
14.1 Each party undertakes to maintain the other party’s Confidential Information (including the terms of the Agreement) in confidence and in accordance with clause 14.
14.2 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Products or Services becomes aware of any unauthorized disclosure of any Confidential Information and shall reasonably assist the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
14.3 The obligations of confidentiality under this clause 14 shall not apply to any information or material which the receiving party can prove:
(a) was already known to it;
(b) was subsequently disclosed to it lawfully by a third party who did not obtain it from the disclosing party; or
(c) was in the public domain at the time of receipt by the recipient party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause 14 or any obligation of confidence owed by the recipient party.
14.3.2 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
14.4 Smoothwall may refer to the Customer as being a client of Smoothwall in customer reference lists, sales presentations and in legally required communication with a public authority or any other legally required disclosure.
15 Data Protection
We collect Personal Data solely for the purposes of providing digital safety services to our customers, not for advertising or to re-sell under any circumstances. The types of data we might collect in the course of this include Domain names, URLs, browsing information, IP address, user names, unencrypted traffic, keystroke logs, content rendered online, screenshots of online content.
15.1 In addition to the terms defined in clause 1.1, for the purposes of this clause, “personal data”, “special categories of personal data,” “controller”, “processor”, “processing”, “data subject” and “Member State”, shall have the meanings ascribed to them under applicable Data Protection Law.
15.2 For the purposes of this clause and to the extent personal data is subject to the laws of a jurisdiction outside of the EU, “applicable EU or Member State law” shall be read as “Data Protection Law”.
15.3 When we collect student information through our Products that includes “educational records” as defined under the FERPA regulation 34 CFR §§ 99.31(a)(1), we agree to act as a “school official” with “legitimate educational interests” in your students’ education records under FERPA, or act under another applicable FERPA exception, such as the “directory information” exception.
15.4 We do not sell Personal Data. We do not use Personal Data to target advertisements or market to students or anyone else, to amass a profile about a K-12 educational student for a non-educational purpose, or for any purposes prohibited by the Family Educational and Privacy Rights Act (20 U.S.C. § 1232g; 34 CFR Part 99.3) (“FERPA”), California Business & Professions Code section 22584 (“SOPIPA”), and California Education Code section 49073.1. We will not use Personal Data for any purpose other than those required or specifically set forth in this Agreement.
15.5 Information on the data processed by Smoothwall under this Agreement, including the information required by Article 28(3) of the Data Protection Regulation is as follows:
Subject matter of processing To provide the Products and Services in accordance with the Agreement.
Duration of processing The duration of the Agreement.
Nature of processing e.g. means of processing To provide the Products and Services in accordance with the Agreement.
Purpose of processing To provide the Products and Services in accordance with the Agreement.
Categories of data subjects Children, teachers, offenders, employees.
Type of personal data (including special categories of personal data) Domain names, URLs, browsing information, IP address, user names, unencrypted traffic, keystroke logs, content rendered online, screenshots of online content.
15.6 Smoothwall shall:
(a) only process the Customer Data on the documented instructions of Customer and otherwise as necessary to perform its obligations described in the Agreement or as required by applicable EU or Member State law provided that Smoothwall informs Customer in writing of that legal requirement before processing unless that law prohibits this on important grounds of public interest;
(b) take all reasonable steps to ensure the reliability of any personnel who may have access to, or are authorized to process, Customer Data including ensuring that such personnel have committed themselves to appropriate obligations of confidentiality or are under appropriate statutory obligations of confidentiality;
(c) implement and maintain all appropriate technical and organizational measures to ensure physical, organizational and logical security of the Personal Data as required by Data Protection Laws and which shall include protection against any Data Breach;
(d) assist Customer by establishing and maintaining appropriate technical and organizational measures for the fulfillment of Customer’s obligation to respond to requests for exercising of Data Subject rights set out in Chapter III of Data Protection Regulation or other Data Protection Laws;
(e) be able to engage any other processor or transfer or disclose any Customer Data to any processor, sub-contractor or other party (“Other Processor”) pursuant to the general written authorisation of the Customer, which the Customer hereby grants, provided Smoothwall informs the Customer in writing of any intended changes concerning the addition or replacement of any Other Processor. If the Customer reasonably objects to any changes concerning the addition or replacement of any Other Processor then the parties shall meet within 15 Business Days to resolve the issue and, if resolution cannot be reached, the Customer may terminate the Agreement and no refunds of the Price shall be paid or payable by Smoothwall;
(f) enter into a written agreement with each Other Processor which are equivalent to, and no less onerous than, those set out in this clause; and remain fully liable to Customer for the performance of that Other Processor’s obligations;
(g) at the Customer’s cost, provide security and other reports as reasonably requested by the Customer to evidence compliance by Smoothwall with this clause 15;
(h) provide all reasonable assistance to the Customer in relation to any Data Breach including informing the Customer, without undue delay after it or its Other Processor becoming aware of a Data Breach, and providing the Customer with as much detail relating to the Data Breach as are available to Smoothwall at the time of such notification;
(i) at the Customer’s reasonable request at any time, participate in, and provide all reasonable assistance with, a data protection impact assessment or prior consultation (including under Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the Data Protection Regulation and/or in accordance with Data Protection laws) in respect of the existing and any new type of processing proposed;
(j) on expiry or termination of the relevant processing for whatever reason cease all use of the Customer Data and shall, at the Customer’s election, destroy all Customer Data and/or transfer all Customer Data to the Customer or a nominated third party (in a format and a method defined by the Customer) unless applicable EU or Member State law requires storage of the Customer Data;
(k) provide such assistance and co-operation as the Customer reasonably requests to enable it to comply with obligations imposed on it under Data Protection Laws.
15.7 Note on Data De-Identification: Smoothwall may use de-identified Customer Data for product development, research, or other internal purposes. De-identified Customer Data will have all direct and indirect personal identifiers removed. This includes, but is not limited to, name, ID numbers, date of birth, demographic information, location information, and school ID. Furthermore, Smoothwall agrees not to attempt to re-identify de-identified Data.
15.8 Data Storage: Customer Data will not be stored outside of the United States without prior, specific and informed written consent from the Customer.
15.9 The Customer hereby appoints Smoothwall as its agent for the purpose of entering into Standard Contractual Clauses on its behalf in relation to transfers of Customer Data outside of the EU or as otherwise required by Data Protection Law.
15.10 Winding up: in the event that Smoothwall no longer continues to provide the services due to bankruptcy, sale or merger, Customer Data will be deleted or transferred back to the Customer.
15.11 List of sub-processors: Microsoft Corp (all products), Amazon.com Inc (Filtering), Crisp Thinking Ltd. (Moderated Monitoring only).
15.12 Data Breach Policy: this can be found at us.smoothwall.com/legal, outlining Smoothwall’s responsibilities including what Customers and users can expect in the event of a data breach.
15.13 Data Privacy related Contact Details: firstname.lastname@example.org; Data Privacy Officer, Smoothwall Inc., Suite 410, 8008 Corporate Centre Drive, Charlotte, NC 28226, USA; +1-800-959-3760. Users or Customers that wish to ask questions related to COPPA compliance can contact: COPPAPrivacy@ikeepsafe.org.
16.1 The Customer agrees to indemnify, hold harmless, and defend Smoothwall against any and all claims, costs, and expenses (including without limitation lawyer’s fees) relating to or arising out of:
(a) any breach by Customer of Open Source Software Licences and/or the Third Party Software Licences;
(b) any asserted infringement of third party rights against Smoothwall, its agents or servants arising as a result of Smoothwall acting in accordance with the instructions of the Customer or on the basis of documents provided by Customer;
(c) any Smoothwall performance or non-performance pursuant to the instructions of the Customer or its authorized representatives; or
(d) any assertion by a third party that any data or information provided to Smoothwall its servants or agents by the Customer is libelous or defamatory.
17 Limits of Liability
17.1 Except as expressly stated in clause 17.2:
(a) Smoothwall shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are direct or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage, even though Smoothwall was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of or goodwill; or
(vi) loss of, or damage to (including corruption of), data;
(b) the total liability of Smoothwall, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Price payable by the Customer.
17.2 The exclusions in clause 11.4 to 11.7 and clause 17.1 shall apply to the fullest extent permissible at law but Smoothwall does not exclude liability for, and nothing in the Agreement shall be construed as excluding or limiting liability for:
(a) death or personal injury caused by the negligence of Smoothwall, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of the Goods and Services Act 1982; or
(d) any other liability which cannot be excluded by Applicable Law.
18 Force Majeure
18.1 Neither party shall be in breach of the Agreement nor liable for delay or failure to perform, any of its obligations under the Agreement where the reason for the delay or failure is beyond the reasonable control of the affected party. The affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 10 weeks, either party may terminate the Agreement on 30 days’ written notice.
19.1 Without prejudice to any rights accrued under the Agreement or any of its rights or remedies, either party may at any time terminate the Agreement on 30 days written notice if:
(a) the other party fails to pay any amount due under the Agreement on the due date for payment and fails to pay within 14 days of notice in writing to make such payment;
(b) the other party commits a material breach of any term of the Agreement (other than failure to pay any amounts due under the Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 60 days after written notice to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
(f) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or issued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(h) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business or steps are taken to wind-up or liquidate the other party.
19.2 Smoothwall may, without prejudice to its other rights or remedies, terminate the Agreement immediately by notice to the Customer, if the Customer disputes the ownership or validity of Smoothwall’s Proprietary Rights.
20 Effects of Termination
20.1 Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
20.2 Any provision of the Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including clause 1 (Definitions and Interpretation), clause 8 (Title and Risk), clause 12.1 (Proprietary Rights), clause 14 (Confidentiality and Publicity), clause 16 (Indemnities), this clause 20 and clause 22, shall remain in full force and effect.
20.3 Termination of the Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
20.4 Notwithstanding its obligations in this clause 20 and excluding any personal data, if a party is required by any law, regulation, or government or regulatory body to retain any materials containing the other party’s Confidential Information, it shall notify the other party in writing of that retention, giving details of the materials that it must retain.
20.5 On termination of this Agreement for any reason, the Customer’s right to receive the Products or Services (including all rights granted under the Software Licence, Open Source Software Licence and Third Party Software Licence) shall cease automatically and Smoothwall shall be entitled to prevent their use. The Customer shall as soon as reasonably practicable return, destroy or permanently erase (if and as directed in writing by Smoothwall) any documents, handbooks, CD-ROMs or DVDs, the Software, Open Source Software and Third Party Software or other information or data provided to it by the Smoothwall containing, reflecting, incorporating or based on Confidential Information.
20.6 All sums payable to Smoothwall under this Agreement shall become due immediately on its termination, despite any other provision of this Agreement. This clause 18.6 is without prejudice to any right to claim for interest under the law, or any right under this Agreement.
21 Export and/or Re-export Limitation
21.1 The Customer is responsible for complying with any legislation governing the import and export of the Products.
21.2 The Customer must not export or re-export directly any Products without first obtaining all such written consents or authorizations as may be required by any Applicable Law.
(a) Any documents or notices given hereunder by either party to the other must be in writing and:
(i) delivered by hand or by recorded delivery and in the case of post will be deemed to have been given 2 Business Days after the date of posting; or
(ii) sent by email. If sent on a Business Day and during the business hours of 8:30 am to 5:00 pm UK time, it will be deemed delivered at the time it is transmitted to the relevant email box specified below. If sent outside of business hours on a Business Day, it shall be deemed delivered at 8:30 am the following Business Day.
(b) Documents or notices shall be delivered or sent to the addresses or email address of the parties set out in the Quotation or to any other address or email address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of the Agreement.
No delay by either party in enforcing its rights shall prejudice or restrict the rights of that party. No waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
If any provision (or part of a provision) of the Agreement is prohibited or otherwise unenforceable, the relevant provision (or part of a provision), will be deemed to be severed to the extent that it is prohibited or unenforceable but the remainder of that provision (and the whole of the Agreement) will remain in full force and effect. In the event of any deemed severance pursuant to this clause 22.3, the parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and enforceable variations to the Agreement that may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the clause, or the part of the clause, in question.
(a) The Customer shall not, without the prior written consent of Smoothwall, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
(b) Subject to clause 15.4(e), Smoothwall may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.5 Third Party Rights
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
22.6 No Partnership or Agency
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties or to authorize either party to act as agent for the other.
22.7 Entire Agreement
(a) The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
(c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
22.8.1 By installing or using the Products in any way, you are representing and warranting that you have the authority, the right, and the capacity to legally bind yourself and your assignees as well as your school, corporation, entity, or other organization, including all employees, agents, and affiliates of such entities. You understand that use of the Products requires the consent for monitoring and recording information and communications of all users on the devices on which you deploy the Products. You represent and warrant that you have obtained such consent. You are also agreeing, on behalf of yourself and your Organization, to this Agreement. You are free to reject this Agreement, but then you may not use our Products in any way.
22.9 IMPORTANT NOTICE: These Terms are subject to binding arbitration and a waiver of class action rights as detailed in the Arbitration and Class Action Waiver in Section 23.2 below. As discussed further below in Section, Smoothwall also reserves the right to modify or replace this Agreement. You are responsible for regularly reviewing your Smoothwall account and our Website for any changes to the Terms.
23 Governing Law and Arbitration
23.1.1 This Agreement and any dispute arising from or relating to this Agreement are governed by the laws of the state of North Carolina, United States, without regard to conflict of law principles. You further agree to accept service of process by mail. If your Organization is a U.S. public and accredited educational institution, domiciled in a state within the U.S. that expressly requires a different choice of law other than North Carolina law, then your state’s law will apply.
23.1.2 Except with respect to the arbitration provisions contained in Section 23.2, the Parties consent to exclusive personal jurisdiction and venue in the courts located in Charlotte, North Carolina. If your Organization is a U.S. public and accredited educational institution domiciled in a state within the U.S. that expressly requires a different venue, then your state’s law will apply.
23.2 Arbitration and Class Action Waiver:
We have selected an initial dispute resolution procedure to more efficiently resolve dispute between you and Smoothwall. Please read this section carefully to understand how arbitration and the class action waiver provisions may affect your legal rights, including your right to file a lawsuit in court and have a jury trial.
(a) Federal Arbitration Act
You and Smoothwall agree that this Agreement affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
(b) Initial Dispute Resolution
In the event of a dispute, claim, or controversy arising out of or relating to this Agreement, the Products, any person’s access to and/or use of the Products, and/or the provision of content, Products, and/or technology on or through the Products (collectively, “Claims”), both Parties must first give the other notice of the Claim. This notice must include a brief written statement with the name, address, and contact information of the party giving it, as well as the facts giving rise to the Claim and the relief requested. You must send any such notice to Smoothwall by email to email@example.com AND by U.S. Mail to Smoothwall, 8008 Corporate Center Drive, Ste 410, Charlotte, North Carolina 28226-4489, United States of America. If we have your contact information, we will send any such notice to you by U.S. Mail and your email address. The parties first attempt to resolve any Claims through informal negotiation within thirty (30) days from the date that any notice of a Claim is sent. The parties shall use reasonable, good faith, efforts to settle any Claim through consultation and good faith negotiations. After 30 days, you or Smoothwall may resort to the other alternatives described in this Section 23.2. Notwithstanding the foregoing, the notice and 30-day negotiation period required by this paragraph shall not apply to Claims concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Products.
(c) Binding Arbitration
Except as otherwise specifically set forth below, any Claims between you and Smoothwall, if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding arbitration to be held in Charlotte, North Carolina. If your Organization is a U.S. public and accredited educational institution and your consent to binding arbitration is expressly prohibited by the laws of the state within the U.S. in which your educational institution is domiciled, then this subsection (c) is hereby waived.
The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by this Agreement, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267.
The decision of the arbitrator will be in writing and binding and conclusive on you and Smoothwall, and judgment to enforce the decision may be entered by any court of competent jurisdiction. You and Smoothwall agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow this Agreement and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. You and Smoothwall understand that, absent this mandatory arbitration provision, you and Smoothwall would have the right to sue in court and have a jury trial.
If any clause within this subsection (c) is found to be illegal or unenforceable, that specific clause will be severed from this Section, and the remainder of its provisions will be given full force and effect.
23.3 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND SMOOTHWALL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
23.3.1 Exception: Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the foregoing, Claims concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Products shall not be subject to arbitration. You or Smoothwall may choose to pursue a Claim in small claims court where jurisdiction and venue over you and Smoothwall otherwise qualifies for such small claims court and where the Claim does not include a request for any type of equitable relief.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. Both parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent you or Smoothwall from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
23.5 Waiver of Jury Trial
YOU AND SMOOTHWALL HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all Claims shall be resolved by arbitration. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SMOOTHWALL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the Claim be resolved by a judge.
23.6 Changes to this Section
Smoothwall will provide 60-days’ notice of any changes to Section 23. Changes will become effective on the 60th day and will apply prospectively only to any Claims arising after the 60th day. If a court or arbitrator decides that this subsection on “Changes to this Section” is not enforceable or valid, then this subsection 23.6 shall be severed from Section 23, and the court or arbitrator shall apply the first Arbitration and Class Action Waiver (or similarly named) section in existence after you first installed, accessed, or used any of the Products.