Octhill

Terms of Services

These Terms and Conditions (“Terms and Conditions”) are entered into by and between October Hill International and Client as of the Effective Date set forth in the Order Confirmation. Unless otherwise set forth in the Order Confirmation, each Order Confirmation executed between October Hill International and Client is subject to the then-current version of the Agreement.

Definitions

Capitalized terms shall have the meanings set forth below:

“October Hill International” means the October Hill International entity named in the Order Confirmation and/or its Affiliates.

“Acceptable Use Policy” means October Hill International International’s Acceptable Use Policy for the applicable Service(s) published by October Hill International at https://www.Octhill.com/ support/security/legal terms (or successor URL).

“Agreement” means, collectively, the Order Confirmation, the Service Description for the Service(s) set forth in the Order Confirmation and these Terms and Conditions, in that order for precedence.

“Affiliate(s)” means an entity controlled by, under common control with, or controlling a party, where control is denoted by having (directly or indirectly) more than fifty percent (50%) of the voting power (or equivalent) of the applicable entity. The Service(s) may be performed by October Hill International or any of its Affiliates.

“Business Contact Information” means contact information (such as name, title, business mailing addresses, email address, or phone number) regarding the other party’s employees, contractors, clients, suppliers, as well as other persons interacting with a Service(s), which has been collected or received by a party in the ordinary course of business for the purpose of maintaining a business relationship as further described in these Terms and Conditions.

“Client” means the individual, the company or legal entity named in the Order Confirmation.

“Client Data” means all data and any information that Client provides or authorizes access to, or inputs into the Service(s), including, but not limited to, Network Data and Client Personal Data.

“Client Personal Data” means Client-owned or controlled personal data provided by or on behalf of Client to October Hill International or an October Hill International Affiliate or subcontractor for processing in connection with the Service(s). Unless prohibited by applicable Data Protection Laws, Client Personal Data shall not include information or data that is anonymized, aggregated, de-identified and/or compiled on a generic basis and which does not name or identify a specific person.

“Data Protection Laws” means all applicable data protection and privacy laws, as amended and replaced from time to time, that apply to the processing of personal data for a particular Service(s), including, as applicable, the EU General Data Protection Regulation 2016/679 (“GDPR”), the Federal Data Protection Act of 19 June 1992 (Switzerland), the UK Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (“UK GDPR”), and any US state or federal laws or regulations relating to the collection, use, disclosure, security or protection of personal data, or to security breach notification, e.g., the California Consumer Privacy Act of 2018 (“CCPA”) and the California Privacy Rights Act of 2020 (“CPRA”).
“Fees” means the fees payable by Client for the Service(s) as further set forth in these Terms and Conditions.

“Information Security Incident” means a breach of October Hill International International’s security leading to the accidental or unlawful destruction, loss, alteration or unauthorized acquisition, disclosure, misuse, or access to unencrypted Client Personal Data transmitted, stored or otherwise processed by October Hill International. The foregoing does not include any of the following where there has been no unauthorized access to Client Personal Data: (a) pings and other broadcast attacks on firewalls or edge servers; (b) port scans; (c) unsuccessful log-on attempts; (d) denial of service attacks; (e) packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers); or (f) similar incidents.

“Meter” means the applicable unit(s) of measurement by which October Hill International offers the Service(s), if applicable, as set forth in the Service Description.

“Order Confirmation” means a services order confirmation and/or statement of work that confirms the Client’s purchase of its Subscription to the Service(s). The specific quantity and Meter applicable to the Service(s) purchased by Client shall be as set forth in the Order Confirmation.

“Network Data” means data that October Hill International or its Affiliates process, collect, retain and use in order to configure the Service(s), to provide the Service(s), and/or in connection with Client’s use of and access to the Service(s), including but not limited to time of transaction, User IP address, username, URL, URL category, status (success or error), file type, filter result (allowed or denied), virus ID, and other metadata (e.g. browser software used), and any other network traffic (and related data) sent to or received from Client through use of and access to the Service(s), in detail and/or in an aggregated form.

“Service(s)” means the Service(s) purchased by Client (as set forth in the Order Confirmation), and provided or managed by October Hill International or its Affiliates, including any Service Component(s), and for which the Service Description is published together with these Terms and Conditions at www.OctHill.com/us-en/support/security/legal-terms (or successor URL).

“Permissions” mean all necessary consents, permissions, as well as notices and authorizations necessary for the processing and onward transfer by October Hill International of Client Personal Data which is required to perform the Service(s), including the transfer of Client Personal Data outside of the country of origin and any of the foregoing, as applicable, from Client employees or third parties; valid consent from or notice to concerned data subjects; and authorizations from regulatory authorities, employee representative bodies or other competent third parties.

“Service Component(s)” means certain enabling software and/or hardware peripheral(s) and associated documentation which may be provided by October Hill International as an incidental part of the Service(s).

“Service Description” means October Hill International International’s description of the Service(s)’ features, including, but not limited to, any service-specific additional terms and requirements, and any accompanying service level agreements published by October Hill International at https://www.OctHillcom.
“Subscription” means, a fixed term right to access, use and/or benefit from the Service(s) during the Subscription Term subject to the terms of the Agreement.

“Sub-processors” means the October Hill International Affiliates, other than the October Hill International contracting entity set out in the Order Confirmation, and the third parties authorized under the terms of the Agreement to have access to and process Client’s Personal Data in order to provide a portion of the Service(s).

“Subscription Term” means the period of time for which a Subscription is valid, as set forth in the Order Confirmation. The terms “controller”, “data subject”, “de-identification”, “personal data”, “process”, “processing”, “processor”, “pseudonymize”, “sale”, “service provider”, and “supervisory authority” as used in these Terms and Conditions have the meanings given in the applicable Data Protection Laws, as relevant.

USE OF SERVICES

  • Delivery; Right to Modify: October Hill International will perform the Service(s) in accordance with the Agreement. October Hill International may modify the Service(s) and/or the corresponding Service Description at any time: (i) due to changes in applicable laws or industry standards; and (ii) for any other reason, if the modification does not materially reduce the level of performance, functionality, security or availability of the Service(s) during the Subscription Term.
  • Internal Use/Client Affiliates: Client’s Subscription to access and use the Service(s) and/or a Service Component(s) during the Subscription Term is on a limited, non-exclusive, non-transferable basis, solely for Client’s internal business purposes and strictly in accordance with the terms of the Agreement, including without limitation: (i) use of the Service(s) and/or a Service Component(s) in accordance with the Acceptable Use Policy; and (ii) use of the Service(s) up to the Meter amount for which Client purchased such Service(s) (as set forth in the Order Confirmation). In the event of non-compliance with the foregoing by Client, October Hill International reserves the right to suspend all or part of the Service(s) during such non-compliance or terminate the affected Service(s) in accordance with these Terms and Conditions
  • Restrictions: Client shall not, and may not cause or permit others to: (i) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the Service(s) and/or a Service Component, unless permitted by applicable law for interoperability purposes; (ii) access or use the Service(s) and/or a Service Component to build or support, directly or indirectly, products or services competitive to October Hill International; or (iii) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Service(s) and/or a Service Component to any third party except as permitted by the Agreement.
  • Client Configurations: Client shall provide October Hill International with information reasonably required to allow October Hill International to provide and deliver the Service(s) or October Hill International International’s delivery of the Service(s) may be delayed or prevented. Client acknowledges and agrees that Client is solely responsible for selecting Client configurations and assuring that the selection conforms to Client’s policies and procedures and complies with all applicable laws and regulations in jurisdictions in which Client is accessing the Service(s). Delivery of the Service(s) does not include Client configurations, nor policies and procedures implemented and set by Client that are available during the Subscription Term. Client assumes full responsibility to back-up and protect Client Data against loss, damage, or destruction.
  • Client Obligations: Client is solely responsible for obtaining all approvals, consents and Permissions required by any third parties or applicable law to use the Service(s). October Hill International is not in default of its obligations if it cannot provide a Service(s) if approvals, consents or Permissions have not been obtained or any third party or applicable law otherwise prevents October Hill International from providing the Service(s). Client is responsible for its account information, passwords and other login credentials and must notify October Hill International immediately of any known unauthorized possession or use of Client’s credentials.

SUBSCRIPTION TERM; TERMINATION; END OF SERVICE(S) AVAILABILITY

  • Subscription Term: Client’s Subscription Term shall commence on the ‘Start Date’ and automatically end on ‘End Date’ as set forth in the Order Confirmation, unless otherwise terminated by either party as set forth below.
  • Termination: A Subscription may be terminated by either party: (i) if the other party breaches any material term of the Agreement and such breach remains uncorrected for thirty (30) days following written notice; (ii) immediately, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other party otherwise ceases or threatens to cease business; or (iii) as otherwise set forth in a Service Description.
  • Effect of Termination: Termination of a Subscription will be without prejudice to any rights or liabilities accrued as of the date of termination. October Hill International is entitled to invoice and Client agrees to pay for all Service(s) provided up to the effective date of termination, and all invoices shall become immediately due and payable on the effective date of termination. Any provision of the Agreement which is intended to survive expiration or termination of a Subscription will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, indemnity, limitations on liability and disclaimers of warranties and damages, governing law, and Client payment obligations accrued prior to termination.
  • End of Service(s) Availability: October Hill International will provide twelve (12) months’ notice of the last date of the availability of the Service(s), unless a shorter period is set forth in the Service Description. October Hill International will provide such notification to Client’s reseller, then-current business, or technical contact, or by publication on the administrator portal for the Service(s), as applicable. Once the Service(s) is no longer available, Client will no longer have access to or use of the Service(s).

INVOICES; FEES; PAYMENT; TAXES.

If Client ordered the Service(s) from an authorized reseller, then all provisions related to pricing, invoicing, fees, payments and taxes shall be as agreed between Client and such authorized reseller and October Hill International will not be liable for any agreement between Client and any authorized reseller. Accordingly, the following terms shall only apply if Client orders the Service(s) directly from October Hill International:
  • Invoices: October Hill International reserves the right to invoice immediately upon the execution of an Order Confirmation for the Service(s) between October Hill International and Client. If Client is required to issue October Hill International with a purchase order document (“PO”), for October Hill International to process Client’s payment of an invoice, then such PO must include sufficient detail to allow October Hill International to accept and accurately fulfil Client’s order for the Service(s). Any terms and conditions set forth in such PO will not be binding upon October Hill International, unless expressly incorporated into the Order Confirmation. The invoicing schedule for the Service(s) will be as described in the Order Confirmation. October Hill International reserves the right to begin invoicing Client, even if October Hill International cannot provide the Service(s) due to Client act, omission or failure to provide required information.
  • Fees and Payment: Client will pay the Fees for its Subscription within thirty (30) days from the date of invoice unless otherwise mutually agreed to in writing by the parties. All Fees are exclusive of taxes and expenses, which are additional. If any sum is not paid by the due date, October Hill International reserves the right, without prejudice to any other remedy, to: (i) charge interest on such overdue sum on a day to day basis from the due date until paid in full the lesser of one percent (1%) per month or the maximum rate permitted by applicable law; and/or (ii) suspend the provision of the Service(s) upon five (5) days prior notice, until paid in full.
  • Taxes: Client is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Service(s) or other items provided under the Agreement, excluding tax imposed on October Hill International International’s net income and withholding taxes. October Hill International will invoice applicable taxes as a separate line item. If a transaction is exempt from tax, Client will provide October Hill International with a valid exemption certificate or other evidence of such exemption in a form acceptable to October Hill International in advance of the applicable invoice date. If Client is required by law to withhold any tax from your payment to October Hill International, Client will provide October Hill International with original or certified copies of all tax payment receipts or other evidence of payment of taxes by Client with respect to transactions under the Agreement. If Client fails to provide October Hill International with such tax payment receipts, if applicable, then Client will reimburse October Hill International for any fines, penalties, taxes and other governmental agency charges resulting from such failure.

LIMITED WARRANTY

October Hill International warrants that its Service(s) will be performed in a good and workmanlike manner, in accordance with the Agreement. THE PRECEDING ARE THE ONLY WARRANTIES CONCERNING THE SERVICE(S), ANY DELIVERABLES OR MATERIALS OR THE AGREEMENT, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OR APPLICABILITY OF THE FOREGOING, OCTOBER HILL INTERNATIONAL DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICE(S) PERFORMEDUNDER THE AGREEMENT WILL:

(A) DETECT OR IDENTIFY ALL SECURITY OR NETWORK THREATS TO, OR VULNERABILITIES OF CLIENT’S NETWORKS OR OTHER FACILITIES, ASSETS, OR OPERATIONS;

(B) PREVENT INTRUSIONS INTO OR ANY DAMAGE TO CLIENT’S NETWORKS OR OTHER FACILITIES, ASSETS, OR OPERATIONS;

(C) RETURN CONTROL OF CLIENT OR THIRD PARTY SYSTEMS WHERE UNAUTHORIZED ACCESS OR CONTROL HAS OCCURRED; OR

(D) MEET OR HELP CLIENT MEET ANY INDUSTRY STANDARD OR ANY OTHER REQUIREMENTS INCLUDING THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD.

THESE DISCLAIMERS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

INTELLECTUAL PROPERTY

Client acknowledges and agrees that the Service(s), Service Component(s) and related processes, instructions, methods, and techniques are owned by or have been developed by October Hill International and/or its licensors, and that the same shall remain the sole and exclusive property of October Hill International and/or its licensors. Client may not reverse engineer the Service(s) or Service Component(s). Client will not assert any rights in October Hill International International’s intellectual property or data, including limitations provided in FAR 12.212 and DFAR Section 227-7202. October Hill International will not assert any ownership rights in Client Data.

INDEMNIFICATION

  • October Hill International will defend, indemnify and hold Client harmless against any claims asserting that the Service(s) infringe any patent, copyright, trademark, or trade secret of a third party, and will pay any and all damages finally awarded by a court and actually paid by Client, or agreed to in a final settlement by October Hill International and attributable to such claim. October Hill International International’s obligations under this Section are subject to Client not having compromised or settled such claim and doing the following:
    (i) notifying October Hill International of the claim in writing, as soon as Client learns of it;
    (ii) providing October Hill International with all reasonable assistance and information to enable October Hill International to perform October Hill International International’s duties under this Section; and
    (iii) allowing October Hill International and its Affiliates sole control of the defense and all related settlement negotiations. Notwithstanding the foregoing, Client may participate at its expense in the defense of any such claim with Client’s own counsel, provided that October Hill International and its Affiliates retain sole control of the claim. Client has the right to approve any settlement that affirmatively places on Client an obligation that has a material adverse effect on Client other than the obligation to cease using the affected Service(s) or to pay sums indemnified under this Section. Such approval will not be unreasonably withheld.
  • If the Service(s) are found to infringe, or if October Hill International determines in October Hill International International’s sole opinion that the Service(s) are likely to be found to infringe, then October Hill International will either:
    (i) obtain for Client the right to continue to use the Service(s); or
    (ii) modify the Service(s) (including, if applicable, any Service Component(s)) so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality, and in the case of infringing Service Component(s), Client will stop using any infringing version of such Service Component(s)); or, if October Hill International determines in its sole opinion that “(i)” and/or “(ii)” are not reasonable, October Hill International may
    (iii) terminate Client’s rights and October Hill International International’s obligations under the Agreement with respect to such Service(s), and in such case shall refund to Client the pre-paid fees for the relevant Service(s). Notwithstanding the above, October Hill International will not be liable for any infringement claim to the extent that it is based upon:
    (a) modification of the Service(s) other than by October Hill International;
    (b) combination, use, or operation of the Service(s) with products not specifically authorized by October Hill International to be combined with the Service(s);
    (c) use of the Service(s) other than in accordance with the Agreement; or
    (d) Client’s continued use of infringing Service(s) after October Hill International, for no additional charge, supplies or offers to supply modified or replacement non-infringing Service(s).
  • THIS SECTION STATES CLIENT’S SOLE AND EXCLUSIVE REMEDY AND OCTOBER HILL INTERNATIONAL INTERNATIONAL’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY.

CONFIDENTIALITY.

  • “Confidential Information” means, for purposes of the Agreement, the non-public information provided by a party (“Discloser”) to the other party (“Recipient”) related to the business opportunities between the parties, provided that such information is:
    (i) identified as confidential at the time of disclosure by the Discloser, or
    (ii) if the initial disclosure is not in written or other tangible form, the Confidential Information will be so identified at the time of disclosure and reduced to written or other tangible form, appropriately marked and submitted by the Discloser to the Recipient as soon as reasonably practicable thereafter, but no later than thirty (30) days after disclosure. Confidential Information of October Hill International shall include product architecture, product research and development plans, non-public financial data and roadmaps, whether marked as confidential or not. A Recipient may use the Confidential Information that it receives from the Discloser solely for the purpose of performing activities contemplated under the Agreement. For a period of five (5) years following the applicable date of disclosure of any Confidential Information, a Recipient will not disclose the Confidential Information to any third party. A Recipient will protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its affiliates, agents and subcontractors with a need to know to fulfill the purpose of the Agreement, under a nondisclosure agreement at least as protective of the Discloser’s rights as this Agreement.
  • This Section imposes no obligation upon a Recipient with respect to Confidential Information which:
    (i) is or becomes public knowledge other than by breach of the Agreement;
    (ii) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality;
    (iii) is rightfully received by the Recipient without any duty of confidentiality;
    (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or
    (v) is independently developed by the Recipient without use of the Confidential Information.
  • The Recipient may disclose the Discloser's Confidential Information as required by law or court order provided:
    (i) the Recipient promptly notifies the Discloser in writing of the requirement for disclosure, if legally permissible; and
    (ii) discloses only as much of the Confidential Information as is required.
  • Each party will retain all rights, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, the Discloser will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all the provisions. Subject to the terms of the Agreement:
    (i) Discloser may request the return of Confidential Information;
    (ii) or upon termination or completion of the Agreement or any Service(s), Recipient will either return (if technically feasible to do so) or destroy the Confidential Information and upon request of Discloser, will certify such destruction. Notwithstanding the foregoing and provided that such information is protected in accordance with the terms of the Agreement, the Recipient may continue to maintain copies of Confidential Information:
    (a) that is included in its data backup, which will be destroyed in accordance with the Recipient’s data retention policies; or
    (b) as required to comply with applicable law, which will be destroyed when such obligation is met.
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DATA PROTECTION

  • Roles of the Parties; Compliance with Data Protection Laws.
  • Each party will comply with the requirements of the Data Protection Laws as applicable to such party with respect to the processing of the Client Personal Data.
  • Client warrants to October Hill International that Client has and will maintain during the Subscription Term all necessary rights (including lawful legal basis (as applicable)) and Permissions to provide the Client Personal Data to October Hill International for the processing to be performed in relation to the Service(s), and that Client has provided all necessary notices, as required under the relevant Data Protection Laws in relation to the processing of the Client Personal Data. If October Hill International is acting as a subcontractor to Client, Client warrants to October Hill International that Client’s instructions with respect to the Client Personal Data have been authorized by the applicable data owner/controller, including the appointment of October Hill International as another processor.
  • October Hill International will process the Client Personal Data only in accordance with the terms of the Agreement, unless otherwise required by applicable law.
  • October Hill International is a service provider and/or processor with respect to the Client Personal Data and Client is an owner and/or controller or processor, as applicable, of the Client Personal Data.
  • Unless otherwise expressly agreed:
    (i) the subject matter and duration of the processing;
    (ii) the nature and purpose of the processing; and
    (iii) the type of personal data and categories of data subjects involved shall be as set forth in the applicable Service Description.
  • October Hill International will promptly notify Client if October Hill International determines, in its reasonable business judgment, that the continued use or provision of the Service(s) will cause Client, the controller of Client Personal Data or October Hill International to be in violation of the applicable Data Protection Laws. In such an event, the parties will work together in good faith to resolve such issue in a timely manner. In no event will either party be required to perform any activity that violates the applicable Data Protection Laws.
  • Disclosure and Use of Client Personal Data.
  • When providing or making available Client Personal Data to October Hill International, Client will only disclose or transmit Client Personal Data that is necessary for October Hill International to perform the applicable Service(s).
  • Following expiration or termination of the provision of Service(s) relating to the processing of Client Personal Data, or at Client’s request, October Hill International will (and will require that its Sub-processors) promptly and securely to delete (or return to Client) all Client Personal Data (including existing copies), unless otherwise required or permitted by applicable laws. Unless otherwise agreed, October Hill International will comply with Client’s deletion instruction as soon as reasonably practicable and within a maximum period of one hundred and eighty (180) days.
  • All October Hill International personnel, including subcontractors, authorized to process the Client Personal Data shall be subject to confidentiality obligations and/or subject to an appropriate statutory obligation of confidentiality.
  • The following shall apply to the extent that the CCPA and/or the CPRA are applicable. October Hill International shall:
    (i) not sell or share any Client Personal Data (as defined by CCPA and CPRA);
    (ii) not retain, use or disclose any such Client Personal Data for any purpose other than business purposes specified in accordance with the Agreement; or
    (iii) not retain, use or disclose such Client Personal Data outside the direct business relationship between October Hill International and Client, as set forth in the Agreement, unless otherwise required by law;
    (iv) not process outside the specified business purpose;
    (v) provide the same level of privacy protection required by the applicable obligations under CPRA for Client Personal Data received by October Hill International;
    (v) not combine personal information of opted out customers from the Client with different sources or with data collected from its own interaction with consumer;
    (vii) notify the business if it can no longer meet its obligations under CPRA and will work with the business to take appropriate steps with regard to the Client Personal Data.
  • Client agrees that execution of the Agreement by October Hill International shall be deemed to constitute any certification that is required under applicable Data Protection Laws to the restrictions on sale, retention, use, or disclosure of Client Personal Data.
  • Security of Client Data: Each party shall implement appropriate technical, physical and organizational security measures to safeguard Client Personal Data from unauthorized processing or accidental loss or damage, as further described in the applicable Service Description (the “Client Data Safeguards”). Taking into account the ongoing state of technological development, the costs of implementation and the nature, scope, context and purposes of the processing of the Client Personal Data, as well as the likelihood and severity of risk to individuals, October Hill International International’s implementation of and compliance with the Client Data Safeguards is designed to provide a level of security appropriate to the risk in respect of the processing of the Client Personal Data.
  • Documentation, Audits and Inspections: October Hill International will make available to Client information that Client reasonably requests to demonstrate October Hill International International’s compliance with its obligations in this Section and will submit to Client’s reasonable audits and inspections in accordance with a mutually agreed process designed to avoid disruption of the Service(s) and protect the Confidential Information of October Hill International and its other clients. As required by applicable law, October Hill International shall inform Client if, in October Hill International International’s opinion, any of Client’s audit instructions infringes upon any applicable Data Protection Law. Client will be solely responsible for determining whether the Service(s) and the Client Data Safeguards will meet Client’s needs, including with respect to any Data Protection Laws.
  • Data Subject and Supervisory Authority Requests: As required by applicable law, and taking into account the nature of the Service(s) provided, October Hill International shall provide assistance as reasonably requested:
  • with respect to Client’s obligations to respond to requests from Client’s data subjects as required under applicable Data Protection Laws. October Hill International will not independently respond to such requests from Client’s data subjects, but will refer such data subjects to Client, except where required by applicable Data Protection Laws; and
  • if Client needs to provide information (including details of the Service(s)) to a competent supervisory authority, to the extent that such information is solely in the possession of October Hill International or its Sub-processors.
  • Data Protection Impact Assessments: As required by applicable law and taking into account the nature of the Service(s) provided and the information available to October Hill International, October Hill International shall provide Client with assistance as reasonably requested with respect to Client’s obligations to conduct privacy / data protection impact assessments with respect to the processing of Client Personal Data as required under applicable Data Protection Laws.
  • Sub-processors.
  • Client generally authorizes the engagement of October Hill International International’s Affiliates as Sub-processors and specifically authorizes the engagement of third parties as Sub-processors, including October Hill International International’s third-party cloud provider(s) as set forth in the applicable Service Description. October Hill International shall remain fully liable for the performance of the Sub-processors in accordance with the terms of the Agreement and shall contractually require (including via standard contractual clauses, sub-processing agreements or, with respect to Affiliates, intra-company agreements) any such Sub-processors to comply with data protection obligations that are at least as restrictive as those October Hill International is required to comply with under the Agreement. In the event October Hill International makes any changes or additions to the list of Sub-processors, October Hill International shall provide notice of any changes or additions as set forth in the applicable Service Description. Client may object to any changes or additions to the list of Sub-processors in writing within ten (10) business days following October Hill International International’s notice of such changes or additions to the list of Sub-processors. In the event of such objection by Client, October Hill International will work in good faith with Client to address Client’s concerns and if feasible for October Hill International, October Hill International shall make further adjustments at Client’s sole cost and expense. If Client’s objection is based on the proposed Sub-processor’s inability to comply with agreed data protection obligations, Client may, as a sole and exclusive remedy, object to such change by terminating the applicable Subscription upon written notice to October Hill International, provided that Client provides such notice within ninety (90) days of receiving October Hill International International’s notice of such change or addition.
  • For avoidance of doubt and without prejudice to the rights of any data subjects, any data transfer agreements (including but not limited to any Standard Contractual Clauses approved by the competent supervisory authorities), that the parties or their Affiliates may enter into in connection with the Service(s), will be considered part of the Agreement and the liability terms set forth in these Terms and Conditions will apply to all claims arising from any data transfer agreements (including but not limited to any Standard Contractual Clauses approved by the competent supervisory authorities). 9.8 Cross-Border Transfers of Client Personal Data.
  • Client hereby acknowledges and agrees that, for the purposes of performing the Service(s), Client Personal Data may be transferred outside the country where Client Personal Data originates from and that the destination countries might not provide an adequate level of protection for personal data as required by the applicable Data Protection Laws (“Third Countries”).
  • To protect Client Personal Data being transferred to Third Countries in connection with the provision of the Service(s), where required by applicable Data Protection Laws, Client shall execute or, as applicable, procure that the relevant Client Affiliates execute a data transfer agreement (including but not limited to any Standard Contractual Clauses for the transfers of personal data to processors approved by competent regulatory authorities) with the relevant October Hill International or third-party entity(ies), acting as data importer(s), to ensure that the Client Personal Data is adequately protected, unless a data transfer agreement is indicated as already executed by October Hill International in the Service Description. The transfer of Client Personal Data to Third Countries contemplated by the Service(s) and the applicable transfer mechanisms are, where applicable, specified in the relevant Service Description.
  • In the event that the transfer mechanisms agreed by the parties are amended, replaced, or cease to be authorized as a means to provide “adequate protection” with respect to transfers of Client Personal Data, the parties will work together expeditiously and in good faith to establish another valid transfer mechanism and/or implement supplementary measures as needed to establish appropriate safeguards for such data.
  • Information Security Incidents: October Hill International shall maintain procedures to detect and respond to Information Security Incidents. If an Information Security Incident occurs which may reasonably compromise the security or privacy of Client Personal Data, October Hill International will promptly notify Client without undue delay. October Hill International will cooperate with Client in investigating the Information Security Incident and, taking into account the nature of the Service(s) provided and the information available to October Hill International, provide assistance to Client as reasonably requested with respect to Client’s breach notification obligations under any applicable Data Protection Laws.
  • Use of Business Contact Information: Privacy Statement. Each party consents to the other party using its Business Contact Information for contract management, payment processing, service offering, and business development purposes related to the Agreement and such other purposes as set out in the using party’s global data privacy policy (copies of which shall be made available upon request). For such purposes, and notwithstanding anything else set forth in the Agreement with respect to Client Personal Data in general, each party shall be considered a data controller with respect to the other party’s Business Contact Information and shall be entitled to transfer such information to any country where such party’s global organization operates. Anytime October Hill International processes additional personal data for its own purposes in the context of the Services performed under the Agreement, the privacy statement referred to in the relevant Service Description shall govern such processing of personal data.
  • Changes in Laws: In the event of:
    (i) any newly enacted Data Protection Law;
    (ii) any change to an existing Data Protection Law (including generally-accepted interpretations thereof);
    (iii) any interpretation of a new or existing Data Protection Law by Client; or
    (iv) any material new or emerging cybersecurity threat, which individually or collectively requires a change in the manner by which October Hill International is delivering the Service(s) to Client, the parties shall agree upon how October Hill International International’s delivery of the Service(s) will be impacted and shall make equitable adjustments to the terms of the Agreement and the Service(s).

LIMITATION OF LIABILITY.

  • Nothing in the Agreement shall exclude or limit:
    (i) October Hill International International’s liability for death or personal bodily injury to the extent caused by its negligence;
    (ii) October Hill International International’s indemnification obligations outlined in these Terms and Conditions; or
    (iii) any other liability which cannot be excluded by law.
  • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL OCTOBER HILL INTERNATIONAL OR ITS LICENSORS BE LIABLE TO CLIENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STATUTE OR OTHERWISE, FOR:
    (I) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, DIMINUTION IN STOCK PRICE OR REPUTATIONAL HARM, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, ANTICIPATED SAVINGS, WASTED MANAGEMENT AND STAFF TIME; WHETHER (IN ANY SUCH CASE) ARISING DIRECTLY OR INDIRECTLY OUT OF THE AGREEMENT OR USE OF THE SERVICE(S), AND WHETHER OR NOT OCTOBER HILL INTERNATIONAL OR ITS LICENSORS HAVE BEEN ADVISED SUCH DAMAGES OR LOSSES MIGHT OCCUR; OR
    (II) ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES.
  • SUBJECT TO SECTIONS 10.1 AND 10.2, TO THE EXTENT PERMITTED BY APPLICABLE LAW, OCTOBER HILL INTERNATIONAL AND ITS LICENSOR’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, REGARDLESS OF THE THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF THE FEES ACTUALLY PAID OR PAYABLE FOR THE SERVICE(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE CAUSE OF ACTION AROSE.

VERIFICATION

No more than one (1) time per calendar year, October Hill International may conduct a verification to confirm the quantity of Client’s use and compliance with restrictions under the Agreement. Upon thirty (30) days’ written notice, Client agrees to provide October Hill International with information reasonably required to support this verification. In addition to information provided by Client, October Hill International may conduct the verification through analysis of collected data and on-site review of Client’s records. On-site reviews will be:

(i) at October Hill International International’s expense; and

(ii) during Client’s normal business hours. October Hill International may engage a third party to complete the verification. Neither October Hill International nor any third-party will require direct access Client’s computing systems. October Hill International will provide Client with a verification report with details on any non-compliance and the corresponding purchase required to resolve any non-compliance. Client agrees to contact its reseller or October Hill International within thirty (30) days of receipt of the verification report to receive a quote and complete the required purchase. October Hill International will require the order to include, as applicable, Service(s) Fees, reinstatement costs, and interest. Interest is at the rate of one and one-half percent (1.5%) per month or the highest interest rate allowed by law, whichever is lower from the date on which any amount became due. Previously agreed upon discounts will not apply to compliance orders.

TRIAL SERVICE(S)

If Client is provided the Service(s) for trial purposes, the trial period will commence and end on the date specified in the Order Confirmation (“Trial Period”). During the trial period, Client may access and use the Service(s) solely for Client’s internal evaluation only. Either party may terminate the Trial Period upon three (3) calendar days’ prior written notice to the other party. After the Trial Period expires, Client may request to continue using the Service(s) only upon purchase of a Subscription via an Order Confirmation. October Hill International has no obligation to provide any training or support service for the Service(s) during the Trial Period, but October Hill International may do so at its sole discretion. DURING THE TRIAL PERIOD, SERVICE(S) ARE PROVIDED TO CLIENT SOLELY ON AN “AS AVAILABLE” AND “AS IS” BASIS, AND OCTOBER HILL INTERNATIONAL DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTEES, AND LIABILITY IN CONNECTION WITH ALL SERVICE(S). CLIENT ASSUMES ALL RISK OF USE OF SERVICE(S) DURING THE TRIAL PERIOD. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, THE LIABILITY OF OCTOBER HILL INTERNATIONAL, ITS LICENSORS, AND/OR SUPPLIERS SHALL BE LIMITED TO THE SUM OF TEN THOUSAND UNITED STATES DOLLARS (USD$10,000) IN THE AGGREGATE FOR ALL CLAIMS AND CAUSES OF ACTION.

GENERAL

  • October Hill International is an independent contractor and shall not be deemed Client’s employee or agent.
  • October Hill International has the right to subcontract the performance of the Service(s) to its Affiliates or third parties, provided that October Hill International remains responsible for the contractual obligations according to the Agreement.
  • All notices, except for cancellation of Service(s), will be in writing and addressed to the receiving party’s current business contact, as stated in the Order Confirmation, with a cc: to the General Counsel/Legal Department of the receiving party or as updated by either party in writing. Notices shall be effective upon receipt and shall be deemed received as follows:
    (i) if personally delivered by courier, when delivered; or
    (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or
    (iii) if delivered by overnight mail, on the first business day after delivery at proper address.
  • Client may not assign the rights granted under the Agreement, in whole or in part and whether by operation of contract, law or otherwise, without October Hill International International’s prior written consent. Such consent will not be unreasonably withheld or delayed.
  • Neither party will be liable for any delays or failures to perform due to causes beyond that party’s reasonable control (including a force majeure event). Without limiting the foregoing, to the extent Client fails to perform any of its responsibilities described in the Agreement, October Hill International shall be excused from failure to perform any affected obligations under the Agreement and, in the event of delay, be entitled to a reasonable extension of time considering the particular circumstances, and a reasonable reimbursement of cost. Each party will notify the other as promptly as practicable after becoming aware of the occurrence of any such condition.
  • The Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming and the United States. The parties will make good faith efforts to resolve within thirty (30) days any dispute in connection with the Agreement by escalating it to higher levels of management. In the event that Client fails to pay, when due, an amount equal or greater to two months’ average Fees under any Order Confirmation, then October Hill International will be permitted to suspend performance until such time as the matter in dispute is resolved. Any dispute relating to the Agreement must be filed in state or federal courts of Wyoming.
  • If any provision of the Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect. A waiver of any breach or default under the Agreement will not constitute a waiver of any other right for subsequent breach or default. No person other than a party to the Agreement will be entitled to enforce any term of it except as expressly provided in the Agreement.
  • Each party will retain responsibility for compliance with all laws and regulations applicable to their respective businesses. Each party will comply with U.S. export control and sanctions laws with respect to the export or re-export of United States origin goods, software and technical data, or the direct product of the same, which includes abiding by all such regulations in respect of all information supplied by or on behalf of the other party. Prior to providing October Hill International any goods, software or technical data subject to export controls, Client will provide written notice specifying the nature of the controls and any relevant export control classification numbers.
  • The terms of the Agreement are the complete and exclusive agreement between the parties with respect to the subject matter of the Agreement, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the parties regarding such subject matter. Neither party shall rely on any precontractual statements or representations not included in the Agreement. The Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Client, even if signed and returned. If the Agreement is translated in any language other than the English language, and in the event of a conflict between the English language version and the translated version, the English language version shall prevail in all respects.