Gryphon Master Services Agreement

Master Services Agreement

This Master Services Agreement, together with all Order Forms (as well as any Statements of Work, exhibits and/or addenda that may be mutually agreed upon) are hereby incorporated by reference and collectively referred to herein as the “Agreement”. This Agreement represents the full legal agreement between the customer (hereinafter “Customer” or “you”) set forth on the applicable Order Form and Gryphon Networks, Corp. (“Gryphon”) governing Customer’s access and use of the Services as defined herein. Gryphon and Customer may be referred to herein individually as a “Party” or collectively as the “Parties”.

By executing an Order Form that references this Agreement, you agree to the terms, conditions, and obligations of this Agreement as of that date that you, as the Customer, sign the Order Form in accordance with the terms herein (“Effective Date”). If you are entering into this Agreement on behalf of your organization or other legal entity, including an Affiliate (as defined herein), you represent that you have the authority to bind such entity to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use Gryphon’s Service(s).

Gryphon reserves the right, in its sole discretion, to modify or replace any part of this Agreement by (a) posting the revised terms on Gryphon’s website and/or (b) announcing the change(s) to Gryphon’s customer base, which may be accomplished via generally distributed notice (including by electronic mail). Any such changes or modifications to the terms shall take effect thirty (30) days after they are either (i) updated on Gryphon’s website or (ii) notice is sent by Gryphon to the interested Party.

Customer and Gryphon hereby agree as follows:

1. Definitions.

1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2. “Authorized Users” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Authorized Users may include, for example, Customer’s and Customer’s Affiliates’ employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business.

1.3. “Customer” means the individual or entity, including Affiliates of such entity, engaging Gryphon to provide the Services specified in this Agreement and any Order Form referencing this Agreement.

1.4. “Customer Data” means all electronic data submitted by or on behalf of Customer to the Service.

1.5. “Documentation” means Gryphon’s end user documentation for the Service available either online, as described in an Order Form, or as provided by a Gryphon representative or authorized third-party, as may be updated by Gryphon from time to time including without limitation the Service descriptions and service-specific terms available at: Gryphon Service Descriptions.

1.6. “Intellectual Property” means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information (as defined herein), data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogans), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.

1.7. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

1.8. “Non-Gryphon Application” means a web-based, offline, mobile, or other software application functionality that is provided by Customer or a third party and interoperates with a Service.

1.9. “Order Form” means an ordering document that specifies the Service, Support Services, and/or Professional Services purchased by Customer under this Agreement that is entered into by Customer (or any Affiliate) and Gryphon. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement. By executing an Order Form hereunder, Customer and/or its Affiliate(s) agree(s) to be bound by the terms of this Agreement.

1.10. “Privacy and Data Security Standards” include Gryphon’s Privacy Policy and Data Security and Payment Card Industry (PCI) Policy.

1.11. “Professional Services” mean consulting services related to best practices, set-up, modification and/or configuration provided by Gryphon in connection with the Service, as described more fully in a Statement of Work or an Order Form.

1.12. “Service(s)” means the subscription services purchased by Customer and provided by Gryphon, as specified on an Order Form and available at: Gryphon Service Descriptions.

1.13. “Statement of Work” or “SOW” means a document that describes certain Professional Services provided by Gryphon for Customer under this Agreement. Each Statement of Work shall incorporate this Agreement by reference.

1.14. “Support Services” means the support services provided by Gryphon in accordance with Gryphon’s then-current support policy as specified in Exhibit A, Support Services and Service Level Schedule.

1.15. “Term” and “Renewal Term” have the meaning set forth in Section 10.1.

2. Obligations of the Parties.

2.1. Gryphon’s Obligations. Gryphon shall make the Service available to Customer pursuant to this Agreement and all Order Forms during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Authorized Users to access and use the Service in accordance with the applicable Order Form and Documentation, solely for Customer’s business purposes. During the Term, the functionality of the Service will not materially decrease. Customer agrees that its purchase of the Service or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Gryphon with respect to future functionality or features.

2.2. Customer’s Obligations. Customer is responsible for all activities conducted under it and its Authorized Users’ account logins for the Service. Customer shall use the Service in compliance with applicable laws and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Service, or any part thereof, or make it available to anyone other than its Authorized Users; (ii) send or store in the Service any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store  infringing or unlawful material in connection with the Service; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Service; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (vi) modify, copy or create derivative works based on the Service, or any portion thereof; (vii) access the Service for the purpose of building or supporting a competitive product or service or copying its features or user interface; or (viii) delete, alter, add to or fail to reproduce in and on the Service the name of Gryphon and any copyright or other notices appearing in or on the Service or which may be required by Gryphon at any time. Customer is responsible for providing its own internet access for connection to the Services. Any use of the Service in breach of this Agreement, Documentation or Order Forms, by Customer or its Authorized Users that in Gryphon’s judgment threatens the security, integrity, or availability of the Service, may result in Gryphon’s immediate suspension of the Service; however, Gryphon will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.

2.3. Professional Services. Customer and Gryphon may enter into a Statement of Work (SOW) that describe the specific Professional Services to be performed by Gryphon. Each SOW will describe the fees, costs and expenses payable by Customer to Gryphon, and the scope and any deliverables relating to such Professional Services. If applicable, while on Customer premises for Professional Services, Gryphon personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to Gryphon by Customer, and will at Customer’s request promptly remove from the project any Gryphon personnel not following such rules and regulations.

2.4. Compliance and Collection Services. If Customer engages Gryphon to provide Compliance and/or Collection Services, Customer will at all times remain in compliance with all laws requiring Customer to register for, acquire or purchase federal, state, and private do-not-call or other do-not-contact lists or data. If applicable, Customer shall provide Gryphon its federally assigned Subscription Account Number (SAN) associated with Customer’s subscription to the U.S. National Do Not Call Registry and, if applicable, the Canadian National Do Not Call List. Customer shall also provide Gryphon with confirmation information associated with Customer’s purchase of state do-not-call lists and any similar privately maintained lists upon request. Customer and Customer’s Authorized Users shall not utilize Gryphon Services to attempt to contact a telephone number associated with any U.S. or foreign jurisdiction for which Customer has not purchased private, state or National Do Not Call Registry contact data. Customer and Authorized Users shall not use Gryphon Services to: (i) place calls to jurisdictions outside the US or Canada, (ii) transmit false, defective or misleading caller ID information, or (iii) place any prerecorded or automated voice telephone calls. Customer will defend, indemnify, and hold Gryphon, its affiliates, directors, employees and agents and their successors and assigns harmless from any liability, claim, demand, suit or action to the extent that it is based on Customer’s failure to fulfill its obligations under this Section 2.4. Customer understands and acknowledges Gryphon obtains or may obtain do-not-call, do-not-email, do-not-text, do-not-mail, do-not-fax, wireless telephone number, and business telephone number data and lists from government bodies, private sources and Customer. Gryphon does not own or control the data and information it is provided by such sources and bears no responsibility for any deficiencies or inaccuracies contained in such data at the time it is provided to Gryphon. Service output reflects such do-not-contact data, Customer Data, legal and regulatory requirements existing at the time-of-Service utilization by Customer. Service output used at a later time or date may not reflect do-not-contact data, legal or regulatory requirements at such later time or date.

2.5. Customer Affiliates. Customer Affiliates may purchase and use subscription Services and Professional Services subject to the terms of this Agreement by executing Order Forms or Statements of Work hereunder that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form or Statements of Work.

3. Security, and Support.

3.1. Security. Gryphon shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data; (ii) protect the confidentiality of the Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement.

3.2. Support Services. During the Term, Gryphon shall provide Support Services to Customer in accordance with Gryphon’s then-current Gryphon support policy, attached hereto as Exhibit A, Support Services and Service Level Schedule.

4. Confidentiality. Each Party (“Recipient”) may, during the course of its provision and use of the Service or provision of Professional Services hereunder, receive, have access to, and acquire knowledge from discussions with the other Party ("Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results, and other security information; defect and support information and metrics; and first and third-party audit reports and attestations (“Confidential Information”). Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient as shown by documents and other competent evidence in the Recipient’s possession. The Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser's prior written permission, or (ii) disclose or make the Discloser’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each Party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure. Additionally, Recipient will provide the Discloser with an opportunity to seek a protective order or other method of limiting its scope of such disclosure.

5. Ownership, Feedback, and Usage Data.

5.1. Customer Data. As between Gryphon and Customer, Customer owns its Customer Data, Confidential Information, including all Intellectual property rights therein, irrespective of whether such Customer Data is stored or processed through the Services. Customer grants Gryphon, and its employees and consultants, a worldwide, limited-term license to host, copy, transmit, and display Customer Data, as reasonably necessary for Gryphon to provide the Service in accordance with this Agreement, including the terms of Gryphon’s Privacy and Data Security Standards. Subject to the limited licenses granted herein, Gryphon acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to any Customer Data. Customer shall be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. Customer will not provide Gryphon with any personal health data, credit card data, personal financial data, or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards as part of its Customer Data.

5.2. Gryphon Ownership of the Service. Except for the rights expressly granted under this Agreement, Gryphon and its licensors, if applicable, retain all right, title, and interest in and to the Service(s), Documentation, and Professional Services, including all related Intellectual Property Rights inherent therein. If Customer purchases Professional Services, Gryphon grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use the Professional Services solely for Customer’s use with the Service. Further, Customer acknowledges and agrees that Services and all ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, and modules included within the Services are proprietary material which contain valuable trade secrets of Gryphon. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

5.3. Feedback. Gryphon shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Authorized Users relating to the features, functionality, or operation of the Service and/or Professional Services (“Feedback”). Gryphon shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.

5.4. Statistical Usage Data. Gryphon owns the statistical usage data derived from the operation of the Service, including data regarding web applications utilized in connection with the Service, configurations, log data, and the performance results for the Service (“Usage Data”). Nothing herein shall be construed as prohibiting Gryphon from utilizing the Usage Data to optimize and improve the Service or otherwise operate Gryphon’s business; provided that if Gryphon provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any of Customer’s Authorized User(s) to any third party.

6. Fees, Expenses, and Taxes.

6.1. Fees. Customer shall pay Gryphon the fees set forth in the applicable Order Form (“Fees”) in accordance with this Agreement and the Order Form. If not otherwise specified on an Order Form, Fees are invoiced annually and upfront and are due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Agreement or the applicable Order Form, all Fees paid and payable to Gryphon hereunder will be in United States dollars (USD) and are non-cancelable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, Gryphon reserves the right to suspend the Service upon thirty (30) days written notice, until such amounts are paid in full.

6.2. Expenses. Unless otherwise specified in the applicable SOW, upon invoice from Gryphon, Customer will reimburse Gryphon for all pre-approved, reasonable expenses incurred by Gryphon while performing the Professional Services, including without limitation, transportation services, lodging, and meal and out-of-pocket expenses related to the provision of the Professional Services. Gryphon will include reasonably detailed supporting documentation of all such expenses with each related invoice.

6.3. Taxes. Except for Customer providing Gryphon with a valid tax exemption certificate authorized by the appropriate taxing authority prior to the commencement of Services, Customer shall be responsible for all sales, use, value added and other taxes, both local and foreign, and similar or analogous charges imposed or assessed on the provision of the Services to Customer, other than taxes based on Gryphon’s net income or property. Notwithstanding the foregoing, all amounts stated in the Agreement (including, applicable Order Form or SOW) are exclusive of the foregoing taxes and if any amounts (including any taxes) are required to be withheld or deducted by Customer from any amount payable to Gryphon hereunder, Customer shall increase such payments such that Gryphon receives the full amount it would have received but for such withholding or deduction. Customer shall be deemed to be using the Services from the billing address stated herein or therein for tax purposes. If, at a future point in time, Gryphon is assessed taxes retroactively for Customer’s past usage of the Services or any Professional Services, Customer will remain responsible for both the taxes and any late penalties or other fees incurred by Gryphon to the applicable taxation authority. Gryphon will notify Customer within seven (7) days of receiving notice of the potential tax liability or penalties and will provide an invoice for any amount owed. Payment will be due within thirty (30) days of the invoice date.

6.4. Disputes. If Customer wishes to dispute an invoice, Customer must notify Gryphon of any disputed fees within twenty (20) days of receiving the invoice. If Customer fails to notify Gryphon of its objection within this time period, Customer will be deemed to have accepted the accuracy of the invoice. Customer must pay any undisputed portion of the invoice as ordinarily due and payable. The parties will negotiate in good faith to resolve the dispute within thirty (30) days and the disputed amount will not be considered overdue during this time.

7. Warranties and Disclaimer.

7.1. Warranties.

a. Service. Gryphon warrants that during the Term: (i) the Service shall perform materially in accordance with the applicable Documentation, (ii) Gryphon will employ then-current, industry-standard measures to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Service, and (iii) Gryphon owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein. As Customer’s exclusive remedy and Gryphon’s entire liability for a breach of the warranties set forth in this Section 7.1 (a) Gryphon shall use commercially reasonable efforts to correct the non-conforming Service at no additional charge to Customer, and in the event Gryphon fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Service and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection shall be Customer’s sole remedy and Gryphon’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Service has been utilized in accordance with the Order Form, Documentation, this Agreement and applicable law.

b. Customer Warranties. Customer represents and warrants to Gryphon that it (i) is duly organized, validly existing, and in good standing under the laws of the country and/or state in which it is organized, (ii) has the full corporate power and authority to enter into this Agreement, Order Form(s), and any SOW for the provision of Professional Services, if applicable, and (iii) perform its obligations hereunder. Customer further warrants to Gryphon that it has and will continue to have the right to provide Gryphon with all Customer Data for the purposes set forth herein and that Customer will not use the Services in conflict or violation of any applicable law or regulation.

c. Professional Services. Gryphon warrants that Professional Services mutually agreed upon in a written SOW will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and Gryphon’s entire liability for any breach of the foregoing warranty, Gryphon will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Customer the Fees paid for the non-conforming Professional Services.

7.2. Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1, GRYPHON  HEREBY DISCLAIMS ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 7.1. GRYPHON MAKES NO WARRANTY REGARDING ANY NON-GRYPHON APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE. GRYPHON SHALL HAVE NO OBLIGATION TO THE EXTENT THAT ANY DEFICIENCY OR FAILURE OF A SERVICE IS CAUSED BY (i) IMPROPER USE OR OPERATION OF THE SERVICE BY CUSTOMER; (ii) CUSTOMER’S REFUSAL OR DELAY TO IMPLEMENT UPGRADES TO THE SERVICES AS PROVIDED BY GRYPHON; (iii) FAILURE OR MALFUNCTION OF ANY ELECTRONIC, TECHNOLOGY OR TELECOMMUNICATIONS EQUIPMENT OR RESOURCE NOT UNDER GRYPHON’S SOLE CONTROL; OR (iv) CUSTOMER REQUESTED MODIFICATION, CHANGE TO OR ALTERATION OF ANY GRYPHON SERVICE DEFAULT CONFIGURATION, SETTING, PROCESS, OR FUNCTIONALITY.

8. Limitation of Liability.

8.1. IN NO EVENT WILL EITHER PARTY (OR GRYPHON’S THIRD-PARTY LICENSORS) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY, OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 6.1 (FEES).

9. Indemnification.

9.1. Gryphon’s Indemnification Obligation. Subject to Section 9.3, Gryphon will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Service, as provided by Gryphon to Customer under this Agreement infringes any patent, copyright, or trademark or misappropriates any trade secret of any third party (each an “Infringement Claim”). Gryphon will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Gryphon, in connection with an Infringement Claim. In the event of any such Infringement Claim, Gryphon may, at its option: (i) obtain the right to permit Customer to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, Gryphon will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Gryphon, (2) the combination of the Service with other products, processes,` or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section are Gryphon’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third-party Intellectual Property Rights of any kind.

9.2. Customer Indemnification Obligation. Subject to Section 9.3, Customer will defend Gryphon from any and all claims, demands, suits or proceedings brought against Gryphon by a third party alleging a violation of a third party’s rights arising from Customer's provision of the Customer Data or Customer’s breach of the warranties in Section 7.1(b). Customer will indemnify Gryphon for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Customer.

9.3. Indemnity Requirements. The Party seeking indemnity under this Section 9 ("Indemnitee") must give the other Party ("Indemnitor") the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.

10. Term, Termination, and Effect of Termination.

10.1. Term. The Services provided pursuant to this Agreement will commence on the effective date of each Order Form (“Order Form Effective Date”) and will continue for the duration set forth in the applicable Order Form (“Term”). Within ninety (90) days of the expiration of the current Term (including any Renewal Term as defined herein) of an Order Form, Gryphon will use reasonable efforts to notify Customer of the upcoming expiration and the Parties will mutually agree upon the terms of a new Order Form for a set duration (“Renewal Term”). Unless otherwise stated on an applicable Order Form, if the Parties do not enter into an updated Order Form, the Services will automatically renew for a Renewal Term equal in duration to the initial Term. Invoicing and payment obligations will remain consistent with the terms mutually agreed upon for the Initial Term or the current Renewal Term. Services that auto-renew for a Renewal Term are subject to a ten percent (10%) price increase each year on the anniversary of the Order Form Effective Date. To prevent an automatic renewal of the Services, either Party must provide the other with written notice of non-renewal a minimum of sixty (60) days prior to the end of the then-current Term or Renewal Term. Additionally, unless otherwise set forth in the applicable Order Form or terminated in accordance with the provisions of this Agreement, all Services will be coterminous. The Term for any Professional Services provided by Gryphon to Customer will be as specified in the applicable SOW.

10.2. Termination. Either Party may terminate this Agreement by written notice to the other Party in the event that (i) such other Party materially breaches a provision of this Agreement or an Order Form and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Material breaches that may result in termination include (a) Customer’s failure to pay any Fees when due and (b) Gryphon's inability to provide Service(s) hereunder due to Customer’s acts or omissions.

10.3. Effect of Termination. Upon termination of this Agreement for any reason, all rights granted to Customer, including all Order Forms, will immediately terminate and Customer will cease using the Service. Termination for any reason other than termination for cause by Customer pursuant to Section 10.2 (i) shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms. The sections titled “Definitions,” “Confidentiality,” “Ownership, Feedback, and Usage Data,” “Fees, Expenses, and Taxes,” “Warranties and Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination or expiration of this Agreement.

11. General.

11.1. Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Gryphon without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either Party may freely assign this Agreement in its entirety (including all Order Forms), upon written notice and without the consent of the other Party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid.

11.2. Governing Law and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to its conflicts of law principles. With respect to all disputes arising out of or related to this Agreement, the Parties consent to exclusive jurisdiction and venue in the state and federal courts located in Boston, Massachusetts. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

11.3. Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

11.4. Equitable Relief. The Parties will be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction.

11.5. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys' fees, expert witness fees, and out-of-pocket and court costs from the non-prevailing Party.

11.6. Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given three (3) business days after deposit with a recognized courier for U.S. deliveries.

If to Gryphon:
Gryphon Networks Corp. 711 Atlantic Ave., 6^th Floor Boston, MA 02111 Attention: Legal Department

If to Customer:

Notice will be provided to the Customer address specified in the most current Order Form provided under this Agreement.

In addition to the mechanisms for giving notice specified herein, unless expressly specified otherwise in an Order Form, the parties may use e-mail as a secondary method to ensure timely notification.

11.7. Force Majeure. Neither Party will be liable in damages or have the right to terminate this Agreement for any reasonable delay or default in performing under this Agreement if such delay or default is caused by conditions beyond the Party’s reasonable control, including without limitation acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, or failures or fluctuations in electrical power, heat, lights, air conditioning, or telecommunications equipment (each of the foregoing, a “Force Majeure Event”), provided that the non-performing Party is without fault in causing such condition. Subject to the Party so delaying promptly notifying the other Party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying Party’s obligations, to the extent affected by the delay, will be temporarily suspended during the reasonable period of time that the cause persists, provided that if performance is not resumed within thirty (30) days after that notice, the non- delaying Party may by notice in writing immediately terminate this Agreement.

11.8. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.

11.9. Export Compliance. Each Party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Service in any manner that would cause any Party to violate any U.S. or international embargo, export control law, or prohibition.

11.10. Anti-Corruption. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Gryphon employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Gryphon.

11.11. Entire Agreement. This Agreement together with the Order Form(s), SOW(s), Exhibits, or applicable Documentation constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the Parties hereto and related to the subject matter hereof are expressly canceled. The Parties agree that any term or condition stated in a Customer purchase order or in any other of Customer’s order documentation (excluding Order Forms or SOWs) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.

 

 

EXHIBIT A
SUPPORT SERVICES AND
SERVICE LEVEL SCHEDULE

Gryphon Support Services

Gryphon shall provide Customer the following Support Services beginning on the date Gryphon first provides Customer access to the Services and continuing throughout the Term and any Renewal Terms:

1. Customer shall receive upgrades to Services which shall mean modifications that result from error corrections, additions in functionality, point releases, or substitutes that accomplish performance, structural or functional improvements (substantial or otherwise), including re-design or replacement. Upgrades do not include new releases of the Services that are (i) identified under a new product name, (ii) are not generally made available to other customers without the payment of an additional fee or fees, or (iii) contain substantially new, different, or enhanced functionality than that contained in or delivered by the Services pursuant to this Agreement, and

2. Phone support for Services is available from the Gryphon Help Desk Monday through Friday from 8:00 am to 6:00 pm and Saturday through Sunday from 9:00 am to 5:00 pm, Eastern Time. In the event Customer opens a trouble ticket, the Help Desk will assign a level of severity in accordance with the schedule below.

Severity	Description	Time to Repair
Critical	Services are not functional or there exists severe Customer operational impact which threatens future business productivity	4 Business Hours
High	Loss of Functionality that diminishes business operations and productivity	8 Business Hours
Low	Feature or Function not working which does not seriously impact Customer’s business or operations	24 Business Hours

 

3.  Gryphon will archive and provide Customer access to records of authorized User Service calling activity for up to five (5) years.

Gryphon Service Level Schedule (SLS)

Gryphon shall be responsible for maintaining the service levels below beginning on the first full calendar month of Customer’s use of the Services in a production environment.

Contact Point: means each U.S. telephone number, postal mail address, or email address submitted for do-not-call, do-not-text, do-not-email, or do-not-mail certification.

System Hours of Operation: Services are generally available 24/7 excluding Weekly Sunday Maintenance Window.

Weekly Sunday Maintenance Window: means 1:00 am to 5:00 am ET each Sunday.

Service/Application	Availability/ Response Time	Service Level Adherence	Measurable Period
Gryphon ONE Platform with Gryphon Connect	99.90% / ≤ 450 milliseconds	99.90%	Systems Hours of Operation
Gryphon Browser Plug-In	99.90% / ≤ 4 seconds	99.90%	Systems Hours of Operation
CRM Integration (non-batch processing)	99.90% / ≤ 4 seconds	99.90%	Systems Hours of Operation
Search™	99.90% / ≤ 10 seconds	99.90%	Systems Hours of Operation
Certify File processing measured from initial file pickup to completion	99.90% / ≤ 24 hours	99.90%	Systems Hours of Operation
Automated Call Blocking	99.90% / ≤ 1 second (per Certification)	99.90%	Systems Hours of Operation
**Web Services	99.90% / ≤ 1 second (per Contact Point)	99.90%	Systems Hours of Operation
*sFTP Service File processing measured from initial file pickup to completion	99.90% / ≤ 24 hours	99.90%	Systems Hours of Operation

 

* ≤ five (5) million Contact Points submitted per twenty-four (24) hour period.

**≤ two hundred (200) total Contact Points per any single Web Service connection and ≤ fifty (50) concurrent Web Service connections allowed.

Scheduled system downtime and any delay or default attributable to Customer’s use of Gryphon Services other than as set forth in the Agreement, or Gryphon documented instructions, shall not be included in determining whether Gryphon has met the service levels set forth herein. Service levels shall be measured based on the performance of Gryphon’s systems, excluding any third-party technology and telecommunications resources not controlled by Gryphon. Service levels for Gryphon services accessed via third-party technology and telecommunications resources (example: CRM service provider application or IVR) shall be measured from and back to the applicable interface with Gryphon’s systems. Service levels set forth herein are subject to change based on Customer directed configurations or customizations.

Exclusions

All SLA measurements do not include periods of Service issues resulting in whole, or in part from, one or more of the following causes:

• Gryphon scheduled maintenance or Customer scheduled maintenance.
• Force majeure events beyond the reasonable control of Gryphon including, but not limited to, acts of God, government regulation, natural disaster, and national emergency.