USE OF THE SERVICE THROUGH THIS SUBSCRIPTION IS SUBJECT TO RESTRICTIONS. CAREFULLY READ THIS SUBSCRIPTION AGREEMENT BEFORE USING THE SERVICE. USE OF THE SERVICE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT PURCHASE ORDER TERMS AND CONDITIONS SHALL NOT APPLY.
MASTER SUBSCRIPTION AGREEMENT ("Agreement")
This is a legal agreement concerning the use of the Software and the Service offered under a time-limited subscription between the acquiring company (“Customer”), and Tripwire, Inc. (“Tripwire”). If you are using the Service as an employee, the legal entity that employs you is the “Customer.” Your employer may have already accepted a version of the terms and conditions in this Agreement by signing a subscription agreement. In all other circumstances, you are binding your employer and yourself personally as an employee, to this Agreement by using the Service. Unless a subscription agreement has been signed by Customer and an authorized representative of Tripwire, this Agreement and the applicable quotation contain the parties' entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements. IF YOU DO NOT, OR THE CUSTOMER DOES NOT, AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY DISCONTINUE USE OF THIS SUBSCRIPTION, CERTIFY DESTRUCTION OF ALL ACCOMPANYING ITEMS, AND SEEK A FULL REFUND OF ANY SUBSCRIPTION FEE PAID.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized Third Party” means third party consultants or contractors which may access and use the Service on Customer’s behalf as long as: (a) the use is solely for Customer’s internal business operations; (b) each Authorized Third Party is under written confidentiality obligations with Customer protecting Tripwire’s intellectual property and Confidential Information with terms no less stringent than this Agreement; (c) Customer ensures that the Authorized Third Party’s use of the Software and the Service complies with the terms of this Agreement; and (d) on completion of the Authorized Third Party’s services requiring the use of the Service, Customer ensures that the Authorized Third Party ceases access or use of the Service immediately.
“Authorized Use” means use of the Service by a User for the internal business purposes of Customer or Affiliates for lawful purposes. Authorized Use does not include using the Service to provide services to third parties (other than Affiliates), unless otherwise mutually agreed by the parties in an executed written agreement.
"Functional Data" means usage data derived or generated by Customer’s use of the Service.
"Customer" means the company or other legal entity accepting this Agreement, and Affiliates of that company or entity.
“Customer Data” means all electronic information submitted by or on behalf of Customer to the Service.
"Documentation" means the online help accessible via Context Sensitive Help within the Service, as updated from time to time, and any Service-specific terms at https://www.tripwire.com/terms/.
“Order” means a purchase order for the Service placed by Customer or through an authorized reseller or distributor and accepted by Tripwire, together with applicable Service-specific terms at www.tripwire.com/terms and, for orders placed directly with Tripwire, the applicable Tripwire quotation.
“Professional Services” means the professional consulting services (including Tripwire Remote Operations and Resident Engineer services) and training offerings, provided by Tripwire subject to the Professional Services Agreement and Professional Services-specific terms at https://www.tripwire.com/terms/, unless superseded by an agreement signed by Customer and Tripwire since 2010.
"Service" means the online, web-based application purchased by Customer and provided by Tripwire, as specified in the Order and as described in the Documentation. Service excludes Professional Services, pre-release software or services, and Support.
"Software" means any software that Tripwire makes available for use and/or download in connection with the Service, provided subject to the End User License Agreement at www.tripwire.com/terms, unless superseded by an agreement signed by Customer and Tripwire since 2010. Any such Software is licensed to Customer based on a specific term beginning and ending identical to the Term of the Service identified in the relevant Order.
“Term” means the duration of subscription from the start date, defined in an Order.
"User" means an employee or Authorized Third Party who has been approved by Customer to use the Service for Customer’s internal business operation, for whom a subscription to the Service has been purchased, and who have been supplied user identification and password by Customer (or by Tripwire at Customer’s request).
2. ORDERS, FEES AND PAYMENT.
2.1 Orders. Each Order constitutes a contract between Customer and Tripwire, which shall be governed solely and exclusively by the terms and conditions of this Agreement and any Service-specific terms found at www.tripwire.com/terms. Any additional or conflicting terms and conditions appearing in Customer’s purchase order are expressly rejected and will not be effective unless agreed in writing by both parties’ authorized representatives. Customer agrees that Customer’s purchase of the Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Tripwire or its representatives regarding future functionality or features.
2.2 Subscription Scope. The Order will identify the specific subscription type, Term, and additional parameters, such as the number of IP addresses to be scanned, type and/or number of scans to be performed, daily data capacity, or other metrics. The Service may be subject to other limitations, including but not limited to: (a) limits on disk storage space or time range of historical data; (b) limits on the number of calls that Customer is permitted to make against Tripwire’s application programming interface; and (c) for the Service that enables Customer to provide public websites, limits on the number of page views by visitors to those websites.
2.3 Fees and Taxes. Customer will be invoiced as specified in the applicable Order. Customer will provide Tripwire with a valid purchase order or alternative document reasonably acceptable to Tripwire. Unless otherwise specified in an Order, all fees are (a) quoted and payable in United States dollars; and (b) are non-cancellable and non-refundable, except as expressly provided in this Agreement. Any past due invoices will be subject to interest charges in the amount of one and one-half percent per month or the applicable legal rate currently in effect, whichever is lower. Prices do not include customs duties, levies, taxes or other similar charges, including by not limited to value-added, sales, use or withholding taxes. Unless provided with a certificate of exemption, Tripwire will invoice Customer separately for all applicable taxes. Notwithstanding anything to the contrary, if Customer appoints a third-party buying agent to place purchase orders and/or make payments on Customer’s behalf, Customer shall be liable for payment under such orders in the event of default by the third party buying agent.
2.4 Suspension of Service. If any amount owed by Customer under this Agreement or any other agreement for the Service is 15 or more days overdue, Tripwire may, without limiting Tripwire’s other rights and remedies, suspend the Service to Customer until such amounts are paid in full.
2.5 U.S. Federal Government End Use Provisions. Tripwire provides the Service, including access to related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Tripwire to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
3. TRIPWIRE’S RESPONSIBILITIES
3.1 The Service. Tripwire shall make the Service available to Customer pursuant to this Agreement and the relevant Orders during the Term. Tripwire grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Users to access and use the Service in accordance with the Documentation and this Agreement.
3.2 Security. Tripwire shall maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and Customer Data as described in the Documentation.
3.3 Support. During the Term, Tripwire will provide support to Customer in accordance with Tripwire’s then-current Tripwire Support Policy, found at www.tripwire.com/terms.
4. CUSTOMER’S RESPONSIBILITIES
4.1 Internal Business Purposes. Customer assumes responsibility for selecting the Service to achieve Customer’s intended results, for the use of, and results obtained from the Service. Customer agrees that the Service is for Customer’s internal business purposes only, and not for providing services to third parties. Customer shall (a) be responsible for Customer’s and its Users' compliance with this Agreement; (b) be solely responsible for the accuracy, quality, integrity and legality of all Customer Data and for the means by which Customer acquires Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify Tripwire promptly of any such unauthorized access or use; and (d) use the Service only in accordance with the Documentation, applicable law and government regulations.
4.2 Responsibility for Customer Data. In the event of any loss or corruption of any of Customer Data that is stored on or processed by the Service, Tripwire shall use commercially reasonable efforts to recover the lost or corrupted Customer Data from Customer’s data source. CUSTOMER AGREES THAT TRIPWIRE’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 4.2 SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND TRIPWIRE’S SOLE LIABILITY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
4.3 Restrictions. Customer shall not: (a) make the Service available to anyone other than Users, (b) sell, resell, rent, lease or create derivative works based on the Service; (c) copy, frame or mirror any part or content of the Service, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (d) reverse engineer, reverse assemble, reverse compile, decrypt, in any way derive or otherwise attempt to discover or analyze any source code, techniques, processes, know-how, or underlying ideas or algorithms of the Service or permit or induce the foregoing, except to the extent permitted by applicable law; (e) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (f) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or third party data contained therein; (h) use the Service to scan any network or network assets that Customer is not authorized to scan; (i) attempt to gain unauthorized access to the Service or their related systems or networks; or (j) access the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Except as expressly provided herein or as necessary for Customer’s permitted use of the Service, Customer shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any software, products, services, data or information (including without limitation any Functional Data) obtained from or generated by the Service.
4.4 Suspension of Service. Any use by Customer or Users of the Service in breach of this Agreement, Documentation, or Order that, in Tripwire’s sole judgment, threatens the security, integrity, or availability of the Service, may result in the immediate suspension of the Service to Customer.
4.5 Customer Suggestions. Customer may choose to, but is not required to, provide suggestions, data, or other information to Tripwire regarding possible improvements in the operation, functionality or use of the Service, whether in the course of using the Service, evaluating Software or otherwise, and any resulting inventions, product improvements, modifications or developments made by Tripwire, at its sole discretion, will be the exclusive property of Tripwire.
5. PROPRIETARY RIGHTS
5.1 Customer Data. As between Tripwire and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.
5.2 Tripwire Ownership of the Service. Subject to the limited rights expressly granted hereunder, Tripwire reserves all rights, title and interest in and to any Software and the Service, including any and all Functional Data, and all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.1 "Confidential Information" means: (a) Customer Data, Customer’s host names, User names and Customer’s passwords, (b) each party’s security or business practices; (c) information regarding each party’s suppliers, employees or customers; (d) non-public information provided by Tripwire regarding the Service, product and service documentation, pricing, trade secrets, road maps and development plans relating thereto; (e) the specific business terms set forth in any quotation, Order or this Agreement; and (f) any other information of a party that is identified as confidential or proprietary at the time of disclosure, or that a reasonable person would recognize to be confidential given the nature of the information and the circumstances of the disclosure.
6.2 Exclusions from Confidential Information. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of the receiving party (“Recipient”); (b) is rightfully known to or received by Recipient prior to receiving such information from the other party (“Disclosing Party”) without restriction as to use or disclosure; or (c) is independently developed by Recipient without use of Confidential Information and without a breach of this Agreement. The existence of this Agreement and the nature of the business relationship between the parties are not Confidential Information.
6.3 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (a) the Recipient will use Confidential Information received from the other party solely for the purpose of performing activities contemplated under this Agreement; (b) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (c) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (d) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are under written confidentiality obligations with the Receiving Party containing protections no less stringent than those herein. Customer agrees to keep all access credentials confidential and not to transfer or disclose them to other individuals or third parties. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information of the Disclosing Party may cause irreparable harm to the Disclosing Party for which a remedy at law would be inadequate. In addition to any and all remedies available at law, the Disclosing Party will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual breach of this Section 6.
6.4 Protection of Customer Data. Tripwire shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Tripwire shall not: (a) modify Customer Data, or (b) disclose Customer Data except as compelled by law in accordance with Section 6.5 or as expressly permitted in writing by Customer. Tripwire does not require access to, and Customer shall not intentionally provide, sensitive data such as protected health information, financial or credit information related to Customer’s employees or customers, or special categories of personal data as defined by applicable data privacy laws (collectively “Protected Data”). If Customer inadvertently discloses any Protected Data in the course of receiving the Service, Tripwire will treat such information as Confidential Information under the terms of this Agreement and, at Customer’s request, promptly destroy Customer Data that includes such information.
6.5 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so; provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.6 Personal Information. Tripwire may store limited personal information in databases accessible globally by its personnel responsible for providing or supporting the Service, and to use the limited personal information for purposes reasonably necessary to the administration of this Agreement. Except with respect to evaluation use of the Service, to the extent that Tripwire processes any Personal Data (as defined in the data processing addendum) contained in Customer Data, on Customer’s behalf, or in the provision of the Service, the terms of the data processing addendum, available at www.tripwire.com/terms, shall apply and the parties agree to comply with such terms.
7. WARRANTIES AND DISCLAIMERS
7.1. Limited Service Warranty. Tripwire warrants that the Service shall perform materially in accordance with the Documentation and the functionality of the Service will not be materially decreased during the Term. The foregoing warranty does not apply to any Service provided for evaluation purposes, which is provided AS-IS with no warranty. CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF THIS SECTION 7.1 SHALL BE AS PROVIDED IN SECTION 10.3 (EFFECT OF TERMINATION). Tripwire shall not be responsible to the extent that a failure of the Service to operate as warranted is caused by or results from: (a) modification of the Service by anyone other than Tripwire or Tripwire’s authorized representatives; (b) combination, operation or use of the Service with Customer’s or a third party's applications, software or systems, unless the foregoing were furnished by Tripwire; (c) abuse, willful misconduct or negligence by anyone other than Tripwire or Tripwire’s authorized representatives; or (d) use of the Service other than in accordance with the terms of this Agreement and/or the Documentation.
7.2. Disclaimer of Other Warranties. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7 ARE EXCLUSIVE. NEITHER TRIPWIRE NOR ITS LICENSORS OFFER ANY OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICE PROVIDED UNDER THIS AGREEMENT. TRIPWIRE OFFERS NO WARRANTY THAT THE SERVICE WILL DETECT OR PROTECT AGAINST ALL THREATS OR BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. TRIPWIRE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, TERMS, CONDITIONS, AND REPRESENTATIONS, INCLUDING BUT NOT LIMITED TO: (a) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND (b) ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No oral or written information or advice given by Tripwire or Tripwire’s authorized representatives shall create a warranty or other obligations on behalf of Tripwire. Customer assumes full responsibility for selecting the appropriate tools, configurations and policies to achieve Customer’s intended results, and for Customer’s use and application of information provided by Tripwire as a result of the Service.
8.1 Indemnification by Tripwire. Subject to Section 8.2 below, Tripwire will defend or settle any action (“Claim”) brought against Customer during the Term and shall indemnify Customer against all costs, damages and reasonable attorneys’ fees that are finally awarded against Customer to the extent those amounts are based upon a third party Claim that the Service directly infringes any copyright, misappropriates any trade secret, or infringes any patent enforceable in the United States. Tripwire will not be responsible for any compromise made or expense incurred without its prior written consent. Tripwire is not liable for Claims based on: (a) combination of the Service with any product not furnished by Tripwire, if the claim would not have arisen in the absence of such combination; (b) use of the Service outside the scope of Authorized Use; or (c) modification of the Service by anyone other than Tripwire or Tripwire’s authorized representative.
8.2 Indemnification by Customer. Customer shall defend or settle any Claim brought against Tripwire and shall indemnify Tripwire against all costs, damages and reasonable attorneys’ fees that are finally awarded against Tripwire to the extent those amounts are based upon a Claim that Customer Data infringes or misappropriates the intellectual property rights of a third party or Customer’s use of the Service violates any privacy rights or applicable law.
8.3 Conditions for Indemnification; Exclusive Remedy. The indemnifying party’s obligations under Sections 8.1 and 8.2 above are conditioned on the indemnified party: (a) promptly giving the indemnifying party written notice of the Claim; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party shall not settle any Claim unless the settlement unconditionally releases the indemnified party of all liability); and (c) providing the indemnifying party with all reasonable assistance on request, at the indemnifying party’s expense. This Section 8 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.
9. LIMITATION OF LIABILITY
9.1 Tripwire’s liability shall not be limited or excluded in relation to: (a) death or personal injury caused by its negligence or intentional misconduct (or that of its employees or agents); or (b) fraudulent misrepresentation; or (c) any other liability that cannot under applicable law be limited or excluded.
9.2 SUBJECT TO SECTION 9.1, IN NO EVENT SHALL TRIPWIRE OR ITS LICENSORS BE LIABLE FOR PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY LOSS OF REVENUE, PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES, OR FOR THE LOSS OF USE OF ANY SERVICE OR SOFTWARE, OR FOR ANY ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, OR FOR ANY INTERRUPTION OF BUSINESS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF TRIPWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 SUBJECT TO SECTION 9.1, IN NO EVENT SHALL TRIPWIRE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE A CLAIM OR ACTION FOR LIABILITY ARISES HEREUNDER. IN THE CASE WHERE NO AMOUNT WAS PAID, TRIPWIRE AND ITS LICENSORS’ DAMAGES SHALL BE CAPPED AT $1,000 USD.
9.4 Customer acknowledges that the fees reflect the allocation of risk set forth in this Agreement and that Tripwire would not enter into this Agreement without these limitations on its liability. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to the extent prohibited by such local laws.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences upon Tripwire’s acceptance of an Order and, unless terminated earlier in accordance with its terms, continues until all subscription Terms under this Agreement have expired or have been terminated. Either Customer or Tripwire may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days following notice thereof from the non-breaching party.
10.2. Effect of Termination. If Customer terminates any subscription for cause, Tripwire shall refund to Customer any prepaid fees covering the remainder of the Term of such subscription after the effective date of termination. If Tripwire terminates any subscription for cause, Customer shall pay any unpaid fees covering the remainder of the term of such subscription, payable on the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Tripwire for the period prior to the effective date of termination. Upon termination of this Agreement for any reason, Tripwire shall have no obligation to maintain or provide any Customer Data to Customer and shall thereafter, unless legally prohibited, delete all Customer Data stored in the Service or otherwise in Tripwire’s possession or under Tripwire’s control. Nothing in this Agreement will be deemed to require Tripwire to return or destroy any Functional Data in Tripwire’s possession or control following the termination of this Agreement. Sections 5, 6,7,8.2, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11. GENERAL TERMS
11.1. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Tripwire’s prior written consent, and any attempted assignment or transfer, without such consent, shall be void. Tripwire may assign or transfer this Agreement to any successor in interest by way of merger or acquisition. Subject to the foregoing, this Agreement shall be binding upon and shall benefit the successors and permitted assigns of the parties.
11.2. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Oregon, USA, excluding choice of laws rules. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the District of Oregon or in state court in Multnomah County, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. This Section 11.2 shall not restrict Tripwire’s right to bring an action against Customer or an Affiliate in the jurisdiction where Customer’s or the Affiliate’s place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.3. Severability; Modification; Notices; Waiver. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Customer’s legal department or to Tripwire at: Tripwire, Inc., Attn.: Legal Department, 308 SW 2nd Avenue, Suite 400, Portland, OR 97204, USA. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.
11.4. Compliance with Laws. Each party shall comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, the export laws and regulations of the United States and other applicable jurisdictions, and economic sanctions regulations administered by the Office of Foreign Assets Control. Without limiting the foregoing Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction.
11.5. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder due to events beyond its reasonable control, including without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and such party continues to use commercially reasonable efforts to resume performance
11.6. Entire Agreement. This Agreement (including all attachments hereto and all Orders) constitutes the entire and exclusive agreement between the parties with respect to its subject matter and supersedes all prior communications, proposals, representations, agreements and understandings, whether written or oral, relating to its subject matter, unless Customer and Tripwire has executed a separate agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by a duly authorized representative of each party. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail.
TRIPWIRE CONNECT CLOUD SERVICE
Usage Restrictions and Subscription Violations – Customer’s usage of the Tripwire Connect Service is limited to the maximum daily indexing volume in Gigabytes as stated on the order. Violations occur when a Customer exceeds the maximum daily indexing volume allowed for its subscription in a 24 hour period. After five subscription violations in any rolling 30 day period, Customer data will continue to be indexed, however certain functions such as search, scheduled reports and alerts, will be unavailable (“Reset Event”). Customer must contact Tripwire support when a Reset Event occurs to request a manual reset. Customer is allowed a maximum of three manual resets during any rolling 90 day period. Tripwire is not obligated to provide a fourth reset and Customer must either reduce its indexing volume or increase the size of its subscription. Tripwire recommends that Customer monitor subscription usage and purchase a subscription sufficient to support its intended usage, in order to avoid Violations and Reset Events.