Terms 1-3
Team Cymru Master Terms and Conditions
1. Scope of Agreement. These Master Terms and Conditions, in combination with the EULA, SLA, Order(s) and/or Purchase Order(s) (the “Agreement”) sets forth the terms and conditions under which Team Cymru will provide Data Services and Web Applications (“Services”) to its Licensees (“Clients”). All Team Cymru Software as a Service Orders or SOWs (“Order”), amendments, and Client POs will be governed by these terms and conditions. In the event of an express and direct conflict between the terms of this Agreement and the Order, the terms and conditions of this Agreement will control, provided, however, the Order may specifically supersede any terms or conditions herein as agreed by the parties. In the event of an express and direct conflict between the terms of this Agreement and a Client PO, the terms and conditions of this Agreement will control. In the event of an express and direct conflict between the terms of the Order and a Client PO, the terms and conditions of the Order will control.
2. Ownership. As between the parties: (a) Team Cymru (or its licensors, heirs, successors and assigns, as may be applicable) owns all right, title, and interest in and to, or has obtained license to, the Services and Team Cymru Data (as defined in the Order or EULA), any updates thereto, and any technology used to provide the services, Team Cymru’s trademarks, copyrights, patents, trade secret rights, logos and any other intellectual property right (“Team Cymru IP”), and any other materials of a kind or nature provided by Team Cymru to Client under or in relation to this Agreement; and (b) Client owns all right, title, and interest in and to derivative works (excluding the Services and Team Cymru Data and all updates thereto), and any other materials of any kind or nature provided by Client to Team Cymru under or in relation to this Agreement. Client hereby acknowledges that Client does not acquire any ownership rights in or to the Services in connection with the Team Cymru IP and Client shall not attempt to break the encryption or other security mechanisms used by Team Cymru in relation to the above.
2.1 Reservation. The rights holder expressly reserves all ownership rights not expressly granted herein.
3. Payment Terms. Client shall pay Team Cymru Inc. net 30 days from receipt of Invoice. Billing Period/Invoicing frequency is annual unless otherwise stated in the Order. Team Cymru’s remit to address, if election is made to not transfer payment electronically, is:
Name: Team Cymru, Inc.
Attn: Accounts Receivable
Address: 901 International Parkway, Suite 350
Lake Mary, FL 32746 USA
Phone: 1-847-378-3300
Fax: 1-407-878-7830
All amounts due under this Agreement shall be payable in full, without reduction for any offset, withholding or other claims, except as expressly agreed upon by both parties. Any amounts payable to Team Cymru, which are not paid when due shall thereafter bear interest at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law until paid in full. If any payment due Team Cymru is collected at law or through an attorney or under advice therefrom or through a collection agency, Client shall pay all costs of collection, including without limitation all court or arbitration costs and reasonable attorney’s fees.
All payments shall be made in the currency specified in the agreement and through a method indicated on the invoice issued by Team Cymru. Any bank charges or fees associated with the payment shall be the responsibility of the Client.
3.1 Taxes. Client acknowledges that Team Cymru is providing products and services that may be subject to sales tax by state and local taxing jurisdictions. Client will be responsible for the payment of any applicable sales or use taxes, or value-added taxes, due on the purchase of taxable products, notwithstanding the applicability of any remote seller requirements that may exist in a specific taxing jurisdiction. If, in the context with complying with legal requirements, Team Cymru requests proof of such payment, Client will comply within a reasonable time period with such request. If Client fails to comply, and unless otherwise agreed to by the parties, Team Cymru may invoice any taxes legally due, and Client will promptly remit such taxes to Team Cymru.
3.2 CPI Definition. If the Client chooses the Renewal Price Lock Option or other automatic renewal for the purposes of this Agreement, CPI shall mean the increase in the non-seasonally adjusted Consumer Price Index for All Urban Consumers (CPI-U), US City Average, All Items, inclusive of the most recently reported month, relative to the same month in the prior year, as published by the Bureau of Labor Statistics of the United States Department of Labor (https://www.bls.gov/cpi/latest-numbers.htm).
3.3 Resale. Where Client has a Reseller Agreement with Team Cymru, Client acknowledges that payment obligations are independent of any secondary sale of Team Cymru products and services. Payment shall not be contingent upon the sales generated by a secondary sale, nor the payment timeline of any end-user.
4. Representations and Warranties. Team Cymru has all rights, approvals, and/or authorizations necessary to provide the Data Services described in the Order, free from all liens, encumbrances and claims of others. Team Cymru agrees that they will not submit information that they know at the time of submission to be false, and that they will submit information only in good faith. Client acknowledges and agrees that information submitted may be unevaluated and unverified, and except as provided in the preceding sentence, no such submission shall constitute any representation or warranty. Client acknowledges and agrees that they must use their own judgment in assessing the nature and accuracy of all the information. EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN THE ORDER, TO THE EXTENT PERMITTED BY LAW, TEAM CYMRU AND ITS LICENSORS, HEIRS, SUCCESSORS AND ASSIGNS HEREBY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE WEB APPLICATION IS PROVIDED ON AN “AS AVAILABLE BASIS”.
5. No Attribution to Team Cymru. No attribution to Team Cymru shall be made to any third parties or to any client, agent, representative, contractor, subcontractor, consultant, advisor or other individual or entity affiliated with Client, unless such individual or entity is bound by this Agreement or Team Cymru has consented to said disclosure in writing.
6. Protection of Confidential Information
6.1 Confidential Information Defined. As used herein, “Confidential Information” means any closely held data, information or financial information in the possession of the disclosing party (“Discloser”), which is disclosed to the receiving party (“Recipient”), not generally available to the public and relates to, but is not limited to, techniques, methods, skills or operations developed or employed by Discloser and which Discloser desires to protect against unrestricted disclosure or exploitation. Any information disclosed by Discloser to Recipient hereunder is designated without marking to be, at the time of delivery, “Confidential Information”. The terms of any Quotation and Order are Confidential Information.
6.2 Information Disclosed Under a Prior Non Disclosure Agreement. Information disclosed by Discloser prior to the effective date of this Agreement pursuant to the terms of a prior non disclosure or similar agreement between the parties, the disclosure of which information was restricted under such agreement, shall retain confidential status and shall be treated as Confidential Information under the terms of this Agreement without further action on the part of Discloser or Recipient.
6.3 Recipient Shall Exercise Care to Protect Confidential Information. Recipient agrees to use the same degree of care in protecting confidential information received under this Agreement as they exercise with respect to their own confidential information. The parties agree to restrict access to confidential information received under this Agreement to only those employees, contractors, subcontractors, consultants, or advisors bound by this or a similar agreement and with a validated “need to know” such information.
6.4 Confidential Information Exceptions. This Agreement imposes no obligation upon the Recipient with respect to Confidential Information which: (a) was in the possession of, or was known by, the Recipient prior to its receipt from the Discloser, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Recipient from a third party, without an obligation to keep such information confidential; (d) is identified in writing or by cryptographically signed email by Discloser as no longer Confidential or for disclosure; or (e) must be disclosed in connection with judicial or regulatory proceedings, or in accordance with a court order or statutory requirement, provided, if legally permitted, notice of same is given by the Recipient to the Discloser prior to such disclosure, giving Discloser an adequate opportunity to interpose an objection or take action to secure handling of the Confidential Information.
7. Indemnification
7.1 Team Cymru hereby agrees to indemnify, defend and hold harmless Client from and against any and all third party claims, actions, proceedings, liabilities or losses including, without limitation, reasonable attorneys’ fees, arising from or based on arising from or relating to (a) any acts or omissions of Team Cymru within the scope of this Agreement, or (b) a breach of the representations and warranties contained in Section 4 hereof.
7.2 Client hereby agrees to indemnify, defend and hold harmless Team Cymru from and against any and all third party claims, actions, proceedings, liabilities or losses including, without limitation, reasonable attorneys’ fees, arising from or based on arising from or relating to (a) any acts or omissions of Client within the scope of this Agreement, or (b) any and all third party claims alleging that a third party’s rights have been violated by Client’s use of the Team Cymru Data.
8. Limitation of Liability. Except for breaches of the confidentiality obligations defined in the above section titled “Protection of Confidential Information”, in no event will either party be liable for any Special, Incidental, Indirect, or Consequential Damages whatsoever (including, but not limited to, damages for loss of profits, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the data/analysis provided under or in connection with any provision of this Agreement, even in the event of default, Tort (including negligence), Strict Liability, Breach of Contract or Breach of Warranty, and even if advised of the possibility of such damages.
9. Miscellaneous Provisions
9.1 Assignment. This Agreement and any and all of the rights and obligations of the parties hereunder shall not be assigned, delegated, sold, transferred, licensed or otherwise disposed of, by operation of law or otherwise, without the prior written consent of the other party, which will not be unreasonably withheld, provided, however, that a party may assign the entire Agreement to any third party in connection with any merger, acquisition, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of the party upon thirty (30) days prior written notice to the other party.
9.2 This Agreement Creates No Implied Rights For Third Parties. Except as otherwise expressly provided herein, this Agreement is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against Team Cymru, or the officers, directors, employees, detailees, agents, representatives, contractors/subcontractors, consultants, advisors, successors, assigns or other agencies thereof.
9.3 Privity Of Contract. No privity of contract exists between Team Cymru and Client’s customers. Team Cymru may neither take direction from, nor discuss any terms and conditions of this Agreement, with Client’s customers.
9.4 Governing Law. This Agreement shall be construed, governed and interpreted in accordance with the laws of the State of Florida, U.S.A. without regard to its conflicts of laws provisions; provided, however, that the statutory and other requirements applicable to U.S. Federal law shall be interpreted in accordance with the decisions of applicable federal courts and boards of contract appeals in lieu of state law.
9.5 No Oral or Implied Waivers. No provision to this Agreement shall be deemed waived nor any breach excused, unless such waiver or consent is received in writing and signed (or cryptographically signed email) by a duly authorized representative of the entity claimed to have waived or consented. No consent to or waiver of a breach by another entity shall be construed as consent to or waiver of any other breach. No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof.
9.6 Provisions Severable. If any provision of this Agreement or its application, in whole or in part, to any entity shall be found to be unenforceable by a court of competent jurisdiction, that provision of this Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties to this Agreement, and such unenforceable provision or part thereof shall be severable, and the remainder of this Agreement shall remain in full force and effect.
9.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and upon execution the then current versions of these Master Terms and Conditions, applicable EULA and SLA shall apply to this Agreement. This Agreement shall be binding upon and inure to the benefit of each of the parties to this Agreement and their respective heirs, successors and assigns. The numbering and labeling of the paragraphs in this Agreement are for identification purposes only and do not constitute any part of the agreement between the parties. This Agreement supersedes all prior and contemporaneous agreements and representations, whether oral or in writing, between the parties with respect to its subject matter. This Agreement may not be modified except by a writing signed by both parties.
9.8 General Disclaimer. Translations of any materials into languages other than English are intended solely as a convenience to the non-English-readers and has no legal effect. In case of any discrepancy between a translation of this document and the official English version, the English version shall prevail.
9.9 Disputes. The parties shall make a good faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Agreement. Any claim, controversy or dispute not resolved by the respective contracts administrators shall be elevated to the parties’ chief operating officers or their designees. If not resolved within thirty (30) days thereafter, the dispute will then be settled by arbitration in accordance with the Rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrators may be entered into any court having jurisdiction thereof. Except as set forth elsewhere in this agreement:
9.9.1 General. Any dispute, controversy, or claim arising in connection with this Agreement shall be settled by binding arbitration. The arbitration shall be conducted by one arbitrator, who shall be appointed pursuant to the rules of the American Arbitration Association (the “AAA”). The arbitration shall be held in Seminole or Orange Counties, Florida, U.S.A. and shall be conducted in accordance with the commercial arbitration rules of the AAA, except that the rules set forth in this Agreement shall govern such arbitration to the extent they conflict with the rules of the AAA.
9.9.2 Best Efforts. The parties shall use their commercially reasonable best efforts to cause the arbitration to be conducted in an expeditious manner. All other procedural matters shall be within the discretion of the arbitrator.
9.9.3 Judgments. The determination of the arbitrator shall be final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The parties shall each be responsible for their own expenses in connection with such arbitration, including but not limited to counsel fees and fees of experts; provided, however, that the parties shall share equally in the expense of the arbitrators and of the AAA.
9.9.4 Confidentiality. All files, records, papers, or documents created in connection with such arbitration, including any record or decision, shall be kept strictly confidential.
10. Partnership Listing. Parties shall mutually agree to display logo on the appropriate partnership section of their websites to be posted on the effective date for the term of service.
11. Effective Date/Termination. The effective date, term and termination are as specified in the Order. This Agreement shall continue to be in effect as specified in an Order executed by Client and Team Cymru for the number of Authorized Users and Tier of Service purchased. The License to use the Services will terminate on the date of termination (end of the then current term) and Client must destroy all copies of the Team Cymru Data.
11.1 Suspension of Services/Termination. Services may be suspended by Team Cymru under this Agreement, or this Agreement may be terminated by written notice to the other party (i) by Team Cymru if payment of any amount payable to Team Cymru under this Agreement, together with any interest accrued thereon, is not received in full by Team Cymru when due, and such default is not cured within fifteen (15) calendar days of Team Cymru having notified Client in writing of such default; (ii) by either party in the event that the other party has committed any other material breach of any of its obligations hereunder that has not been cured within thirty (30) calendar days after the breaching party has received a written notice thereof; (iii) by mutual written agreement of the parties.
11.2 Termination Upon Bankruptcy. Effective immediately and without any requirement of notice, either party may, at its option, terminate this Agreement and/or suspend its performance in the event that (i) the other party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined, or discharged within sixty (60) calendar days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.
11.3 Effect of Termination. Upon termination of this Agreement, the license granted to Client in this Agreement shall terminate, and Client shall immediately discontinue all further use of the Services, or, if applicable, promotion, marketing or sale, leasing, licensing or any other distribution of the Services. Without limiting the generality of the foregoing, upon termination the parties shall (i) promptly return to the other party any tangible property representing disclosed Confidential Information divulged by Team Cymru and all copies thereof; and (ii) erase/delete any such Confidential Information held by it in electronic form, and (iii) immediately remit all payments due to Team Cymru from Client under the terms of this Agreement. Client acknowledges and agrees that cancellation of these terms and/or the stoppage of the use of the Services shall not grant Client the right to refunds for any amounts paid to Team Cymru. All payments for the use of the Services are final and non-refundable. As to information conveyed pursuant to this Agreement, the rights, obligations, and understandings with respect to the disclosure and use of such information shall survive any termination or expiration of this Agreement.
Team Cymru reserves the right, at its sole discretion, to update or revise the Master Terms and Conditions at any time without prior notice. Any updates shall not apply to existing Agreements unless otherwise agreed by the parties.
Version 1.3 (November 4, 2022)