This Identity Guard Program Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below) and is an agreement between Intersections Inc. d/b/a Identity Guard (“Identity Guard”, “We” or “Us”) and the business entity entering into this Agreement in the manner set forth below (the “Company”, “You” or “Your”). This Agreement takes effect when You click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service (the “Effective Date”). The person entering into this Agreement on behalf of the Company represents to us that he or she is lawfully able to enter into contracts for the Company and has the legal authority to bind that entity.
A. Identity Guard provides certain services that provide entities with tools that create awareness of, and assists small to mid-sized businesses with preparing for, a data breach (the “Service(s)”).
B. You wish for Identity Guard to provide certain of those Services to the Company, and
THEREFORE, for good and valuable consideration the receipt and sufficiency of which the parties acknowledge, the Company hereby agrees to the following Terms and Conditions:
TERMS AND CONDITIONS
1. Services. Identity Guard will provide You with the Services you have selected and purchased on the Identity Guard website as set forth in this Agreement. The Services are non-refundable and non-returnable.
2. Scan. Identity Guard has contracted with a third party for purposes of providing the part of the Services known as the Network Vulnerability Scan (“Third Party Scan Provider”). Identity Guard will provide certain information, as set forth on the Identity Guard website to the Third Party Scan Provider, which shall include:
i. Public IP address owned by the Company which the Company has provided to Identity Guard and requested to be scanned by the Third Party Provider.
ii. Contact information for the individual within the Company to whom the Third-Party Scan Provider will send the scan result reports. Identity Guard shall not have access to any results of the scans.
Any additional services the Company elects to purchase or receive from the Third-Party Scan Provider (“Add-On Services”) shall be at the Company’s own risk and expense. Any Add-On Services shall be governed by an agreement between Company and Third-Party Scan Provider.
3. ID Theft Service. As part of the Services the Company will have access to redemption codes that the Company may purchase at a discounted rate. The redemption codes may be used to provide to Impacted Individuals (defined below) to for individuals: (i) whose data may have been compromised, (ii) with U.S. mailing addresses, and (iii) who are at least (eighteen) 18 years of age (“Impacted Individuals”). Each redemption code is non-refundable and non-returnable. In addition to meeting certain authentication, verification and service delivery requirements, the Impacted Individual must provide the redemption code to be deemed a “Customer” of the ID Theft Service. Company not provide the Service and shall not provide information about the Service to Impacted Individuals or Customers except by use of materials provided by Identity Guard or approved by Identity Guard (the “Communication Materials”). You shall direct all inquiries from Customers or Impacted Individuals regarding the Services to Identity Guard. Identity Guard will accept enrollments up to 90 days from the date the redemption codes are provided to You. Identity Guard will provide the ID Theft Service to each Customer for twelve months from the date of enrollment. (the “Service Term”). Neither the Company, nor any representative or agent of Company shall purport to enroll any Impacted Individual in the Service, or collect information from any Impacted Individual for such purpose or otherwise in connection with the Service. With respect to the Service,You acknowledge and agree that any enrolled Impacted Individual is a Customer of Identity Guard. Identity Guard will not provide you with any personally identifiable information about any Customer. Notwithstanding the foregoing, for any Customer who is either terminated by You or whose Service Term has ended, Identity Guard may offer the Customer the opportunity to enroll in the Service at a price determine by Identity Guard and, if a Customer elects to enroll, any relationship between Identity Guard and the Customer will not be governed by this Agreement.
4. Taxes. Some of our Services may be taxable in certain states. Since Identity Guard has not deemed You to be a reseller of Identity Guard Services, fees and charges payable by You may include applicable taxes and duties charged by Identity Guard, including value added taxes and applicable sales tax that You are responsible for paying. If You are legally entitled to an exemption from any sales, use, or similar transaction tax, You must provide Identity Guard with legally sufficient tax exemption certificates for each applicable taxing jurisdiction. Once Identity Guard has received, reviewed and approved such documentation, Identity Guard will apply the tax exemption certificates to charges under Your account occurring after the date Identity Guard receives the tax exemption certificates. If any deduction or withholding is required by law, You will notify Identity Guard and will pay Identity Guard any additional amounts necessary to ensure that the net amount that Identity Guard receives after any deduction and withholding, equals the amount Identity Guard would have received if no deduction or withholding had been required. Additionally, You will provide Identity Guard with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. Identity Guard reserves the right to pass through to You any additional fees or charges created by a change in regulation, tax law (including, but not limited to, changes in taxability of a product or service or changes in requirements of businesses to collect such taxes), similar change in policy by a taxing authority, or a change in the nature of our business that requires Identity Guard to collect such taxes under applicable law that we were not required to collect before such change in the nature of our business.
5. Restrictions. You may not create any materials regarding or referencing Identity Guard or the Service, including without limitation letters, emails, scripts, and Web pages. You may not market or promote the Service in any manner that (i) contains or promotes violence or hatred, criminal or illegal activities, sexually explicit material, discrimination based on race, color, sex, religion, nationality, disability, sexual orientation or age; (ii) is libelous, defamatory, disparaging, obscene or offensive; (iii) uses any downloadable application; (iv) includes content that is deceptive or misleading, or otherwise fails to comply with all applicable federal and state consumer protection laws, including without limitation the federal CAN-SPAM Act and state anti-spam laws; (v) promotes any illegal activity including without limitation the promotion of gambling, illegal substances, software piracy, or hacking; (vi) private investigation, physical security services, the practice of law, fraudulent or unethical conduct, or “credit repair” or “credit counseling” as defined by applicable law
6. Term and Termination. Effects of Termination of Agreement.
6.1. Term. The initial term of this Agreement shall be for one (1) year (“Initial Term”), which, subject to paragraph 7 herein below, shall thereafter automatically renew for successive one (1) year terms (“Renewal Terms”) unless either party gives written notice to the other of its intent not to renew this Agreement at least thirty (30) days prior to expiration of the Initial Term or a Renewal Term, as applicable, or unless otherwise terminated in accordance with this Agreement. The Initial Term and all Renewal Terms are collectively referred to as the “Term”. Notwithstanding anything to the contrary contained in this Agreement, either party may terminate this Agreement upon thirty (30) days prior written notice to the other party; provided no refunds will be provided to Company for the Services.
6.2. Effects of Termination. Upon termination of the Agreement: (a) all licenses granted by Identity Guard to You, and any authorization of You to promote or market the Service shall immediately terminate; (b) You shall immediately cease any and all use, distribution or display of the Communication Materials; (c) the Receiving Party (as defined below) shall cease use of, and destroy and certify destruction of, or return to the Disclosing Party (as defined below) any Confidential Information (as defined below) of the Disclosing Party; and (d) Identity Guard shall continue to provide services to Customers who enrolled prior to the date of effective date of termination for the duration of their respective Service Terms. The parties’ rights and obligations under this Agreement applicable to provision of the Service to those Customers that Identity Guard continues to service, including without limitation the payment of fees and expenses, shall remain in effect until Identity Guard ceases to provide the Service to those Customers.
6.3. Survival. Sections 3,4, 6, 7,8, 11, 12 and 13 of this Agreement shall survive termination of the Agreement.
7. Fees and Expenses. Upon completion of your order, Identity Guard will bill Your credit card the applicable fees set forth on the website for the Services You have ordered. Upon successful receipt of the fees, You will be provided access to the Services. No less than dforty-five (45) days prior to any Renewal Term, Identity Guard will notify you (the “Renewal Notification”) that your credit card will be billed for such Renewal Term. The cost of the Service will be set forth in the Renewal Notice. Identity Guard will bill the credit card on file the amount set forth in the Renewal Notification. Where Identity Guard is unable to collect the fees for the Services, Identity Guard may suspend or terminate the Company’s access to the Services, including Customers’ access to the ID Theft Service until such time Identity Guard is in receipt of the all fees due. Except as otherwise set forth in the Agreement, each party is responsible for its own expenses.
8.1. Confidential Information Defined. “Confidential Information” as used in this Agreement means information of a party that is disclosed to a party (the “Receiving Party”) by or on behalf of the other party (the “Disclosing Party”) in connection with and during the term of this Agreement, including, without limitation trade secrets, know-how, inventions, techniques, processes, algorithms, computer software programs, schematics, financial and business data, projections and plans, strategies, operational plans and details, designs, marketing or sales data information of or about Customers, marketing or sales data, and the terms of the Agreement. Notwithstanding the foregoing, “Confidential Information” does not include information that: (a) is or becomes generally available to the public through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to receipt from or on behalf of the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without violation of any right of the Disclosing Party; or (d) is independently developed by the Receiving Party.
8.2. Obligations. Except as further agreed by the Disclosing Party in writing, the Receiving Party may not use the Disclosing’s Party Confidential Information for any purpose other than performance under the Agreement, or disclose the Disclosing Party’s Confidential Information to any third party. The Receiving Party shall ensure that its employees, contractors and agents do not disclose the Disclosing Party’s Confidential Information without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, (i) the Receiving Party may disclose the Disclosing Party’s Confidential Information as required under applicable law, regulation or court order, provided that the Receiving Party gives the Disclosing Party reasonable notice prior to such disclosure.
9. Intellectual Property. You acknowledge and agree that Identity Guard is and shall remain the sole owner of each of Identity Guard’s trademark, service mark, copyright, patent right, or other intellectual property right under which the Service are marketed (the “Identity Guard Trademarks”) and any and all right, title and interest, including without limitation any patent, copyright or trade secret right, in any invention, discovery, process, method or work of authorship used or provided by Identity Guard in connection with the Service, including any Communication Materials or other advertising to promote Identity Guard or the Services, or any derivative work or improvement of any of the foregoing (collectively with the Identity Guard Trademarks, the “Identity Guard Intellectual Property”). Identity Guard grants You a nonexclusive, revocable, nontransferable, non-sublicensable license, during the Term, to use and display the Identity Guard Trademarks for the sole purpose of performing under this Agreement. You acknowledge and agree that, by virtue of use of the Identity Guard Intellectual Property, You do not acquire any right, title or interest in the Identity Guard Intellectual Property and that all use of the Identity Guard Intellectual Property inures to the benefit of Identity Guard.
10. Representations and Warranties.
10.1. Mutual Representations and Warranties. Each party represents and warrants as follows: (i) It has all right and authority necessary to enter into and perform under this Agreement and that it has duly entered into this Agreement ;(ii) its performance of or exercise of rights under the Agreement does not violate any law, regulation, court order, or material agreement to which it is subject;
10.2. Exclusions. THE WARRANTIES SPECIFIED IN THIS SECTION 10 ARE THE SOLE WARRANTIES MADE BY THE PARTIES IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, AND ARE MADE TO AND FOR THE BENEFIT OF THE OTHER PARTY ONLY. NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, AND HEREBY DISCLAIMS AND EXCLUDES FROM THIS AGREEMENT ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NONINFRINGEMENT, NONINTERFERENCE WITH DATA, OR ACCURACY, OR THAT THE SERVICES ARE ERROR-FREE. WITHOUT WAIVING THE GENERALITY OF THE FOREGOING, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT IDENTITY GUARD PROVIDES THE SERVICES ON AN “AS-IS” “AS AVAILABLE” BASIS AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER ARISING FROM THE SERVICES.
11. Indemnification. Each party agrees to defend, indemnify and hold harmless the other party and each of its employees, agents, officers, directors and shareholders, from and against any claim, suit, demand, or action, or without limitation reasonable attorney’s fees (each and collectively, a “Claim”) arising from breach by the indemnifying party of its Section 8 Confidential Information Obligations and Section 10 Representations and Warranties under the Agreement. Further, You shall defend, indemnify and hold harmless Identity Guard and each of its employees, agents, officers, directors and shareholders, from and against any Claim arising from offering of the Service by You, except to the extent arising from breach by Identity Guard of its Section 10 Representations and Warranties. Any person or entity seeking to be defended, indemnified or held harmless under this Section 11 must (a) give the indemnifying party prompt notice of the Claim; (b) cooperate reasonably in defense of the Claim; and (c) allow the indemnifying party sole control of the defense, provided that the indemnified person or entity may participate in the defense, at its own expense, and the indemnifying party may not consent to any agreement, order or relief that imposes any obligation on the indemnified person or entity without the indemnified person’s or entity’s written consent.
12. Liability Limitations. EXCEPT IN THE EVENT OF BREACH BY A PARTY OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, OR WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 ABOVE: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, AND LOST DATA, OR FOR ANY CLAIM BY ANY THIRD PARTY, EVEN IF THE BREACHING PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM; AND (B) IDENTITY GUARD’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL IN NOEVENT EXCEED THE AMOUNT OF FEES PAID DURING THE 12 MONTH PERIOD PRECEDING THE TIME THE CLAIM IS ASSERTED.
13.1. Nonexclusivity. You acknowledge and agree that the Services may be the same as or similar to services marketed or provided by Identity Guard independent of this Agreement, and nothing in this Agreement restricts or limits Identity Guard’s right to market and provide such services.
13.2. Compliance. Identity Guard may upon written notice to You modify, suspend or terminate any provision of this Agreement to the extent reasonably necessary to comply with any applicable law, regulation, government agency ruling or directive applicable to the Service, or requirement of any of its suppliers, including but not limited to a credit reporting agency or other third party that supplies data used in connection with the Services.
13.3. Independent Contractors. Each party is an independent contractor of the other party, and no other relationship between the parties is formed, including without limitation any employment, agency, partnership, joint venture or fiduciary relationship.
13.4. Assignment. This Agreement binds and inures to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the express prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Identity Guard may assign the Agreement, without Your consent, to an entity that acquires all of the stock, or substantially all of the assets, of the assigning party, or the surviving entity in a merger with the assigning party or permit its Affiliate to exercise its rights and undertake its obligations under this Agreement.
13.5. Force Majeure. Neither party is liable for delays and failures in performing under this Agreement that result from any cause beyond the reasonable direct control of the party, with the exception of nonpayment.
13.6. Waiver. Any failure or delay in exercising, or any single or partial exercise of, any right or remedy by either party, may not be deemed a waiver of any further, prior, or future right or remedy.
13.7. Governing Law and Forum. This Agreement is governed by and to be construed in accordance with the laws of the Commonwealth of Virginia, exclusive of its choice of law rules. The parties consent to the exclusive jurisdiction in the state or federal courts in the Commonwealth of Virginia with respect to any dispute arising under this Agreement.
13.8. Notices. All notices required to be given in writing must be sent by national overnight delivery service with Internet tracking capabilities, or confirmed facsimile, to the name and address or facsimile number (as applicable) designated in this Section 13.8 below, or to such other address or facsimile number that the receiving party may in advance designate by written notice. Notice is deemed effective on the day after delivery to the overnight carrier, or, if faxed, upon the sender’s receipt of confirmation that facsimile transmission occurred. Notices may also be made in person, and shall be deemed effective upon delivery.
Notice to Identity Guard:
SVP, Chief Revenue Officer
3901 Stonecroft Boulevard
Chantilly, Virginia 20151
CC: Chief Legal Officer and Chief Risk Officer
3901 Stonecroft Boulevard
Chantilly, Virginia 20151
Notice to You:
Address provided at the time of order on the Identity Guard Website.
13.9. Severability. If any provision of this Agreement is declared invalid, the other provisions remain in full force and effect, and the Agreement is deemed to be amended to replace the rights and obligations contained in the invalid provision.
13.10. Interpretation; Conflicting Terms. The terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either party by virtue of a party’s involvement in preparing or reviewing this Agreement. The headings of the sections and subsections of this Agreement have been added for the convenience of the parties and are not to be deemed part of the Agreement.
13.11. Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any third-party.
13.12 Entire Agreement; Amendment or Modification. The Agreement constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous agreements, statements and representations, oral or written, between the parties relating to the subject matter of the Agreement. No modification or amendment of the Agreement is binding on either party unless in writing signed by both parties.