TERMS OF SERVICE
Last Updated: November 30, 2023
These Terms of Service (these “Terms”) are a legal agreement between DNSFilter, Inc., a Delaware corporation (“DNSF”), and the customer purchasing a DNSF Product (“Customer”) through an Order. These Terms and any Order are referred to collectively as the “Agreement”. DNSF and Customer may be referred to individually as “Party” or collectively as the “Parties”.
If you are agreeing to these Terms on behalf of a third-party entity, you represent and warrant that you have sufficient right to bind such third-party to these Terms, in which case, all references to “Customer” in these Terms shall be references to such third-party.
If Customer has entered into a separate agreement with DNSF for the Products identified in the Order (“Services Agreement”), such Services Agreement shall govern the Order in place of these Terms. Nothing in these Terms modifies Customer’s rights or obligations under a Services Agreement.
In the event of a conflict between these Terms and the terms of an Order, the Terms will control unless the conflicting term of the Order expressly states otherwise.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. General.
1.1. Provision of Service. DNSF shall make the Service available to Customer for the subscription term selected during the Sale Transaction (the “Subscription Term”), and grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Service, solely for Customer’s use, in accordance with this Agreement (including any usage restrictions as may be set forth in an Order).
1.2. Software License Grant. If included in an Order, DNSF grants Customer, during the applicable Subscription Term, a limited, non-exclusive, non-sublicenseable, non-transferable license to install the Software, in machine-readable form only, and to use the Software solely in connection with the Service, all in accordance with this Agreement, and any additional usage restrictions as may be set forth in an Order. Any Software licensed by Customer in connection with the Service will be delivered to Customer by electronic download and Customer shall be solely responsible for its installation. All Software is deemed accepted upon download.
1.3. Free Trials.
(a) Free Trials. DNSF may offer Customer the ability to participate in a free trial of the Products (“Free Trial”) for a limited period of time (“Trial Period”). Customer will not be charged by DNSF until the Trial Period has expired. Trial Periods may be extended by DNSF in its sole discretion at the request of Customer. After the last day of the Trial Period, unless Customer has completed an Online Purchase or an Offline Purchase, the Free Trial will be automatically canceled. At any time and without notice, DNSF reserves the right to modify the terms and conditions of the Free Trial or cancel such Free Trial.
(b) Disclaimer. Notwithstanding anything to the contrary in this Agreement, Free Trial Product(s) are provided “AS IS.” DNSF MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO PRODUCTS UNDER A FREE TRIAL (“FREE TRIAL PRODUCT”). DNSF SHALL NOT HAVE ANY LIABILITY FOR CUSTOMER’S USE OF FREE TRIAL PRODUCTS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY (NOTWITHSTANDING ANY LIMITATION OF LIABILITY CONTAINED ELSEWHERE HEREIN), UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE DNSF’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL PRODUCT IS $100.00. ANY DATA COLLECTED OR STORED IN CONNECTION WITH A FREE TRIAL PRODUCT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL PRODUCT.
1.4. Support Services. Unless otherwise identified on an Order, Customer shall be entitled to receive DNSF’s standard support for the Services. Additional support may be purchased in an Order.
2. Use Guidelines; Proprietary Rights.
2.1. Restrictions. Customer may use the Products solely in accordance with this Agreement, including any related Order. Customer shall not, except as expressly permitted by this Agreement: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, or otherwise commercially exploit or make the Products available to any third-party except as expressly contemplated by this Agreement; (b) modify, adapt, alter, translate or create derivative works of the Products; (c) reverse engineer, decompile or disassemble the Products (or otherwise attempt to derive the source code or underlying ideas or algorithms of the Products); (d) take any action that would cause the Products to be placed in the public domain; (e) remove, alter, or obscure any proprietary notices of DNSF, its licensors or supplier included in the Products; (f) send or store Malicious Code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam; (g) interfere with or disrupt the integrity or performance of the Service or the data contained therein, including conducting any load or penetration testing on the Service; (h) attempt to gain unauthorized access to the Service or its related systems or networks; (i) circumvent, disable, or interfere with security-related features of the Products or features that enforce limitations on use of the Products; or (j) access the Products for the purpose of building a competitive product or service or copying its features or user interface.
2.2. Suspension of Service for Critical Cause. DNSF reserves the right to suspend the Service provided to Customer if: (a) Customer is delinquent on any undisputed (in good faith) late payment obligations to DNSF or a Reseller for more than thirty (30) days following written notice of such late payment; (b) DNSF reasonably believes that suspension of the Service is necessary to comply with the law or requests of governmental entities; or (c) DNSF reasonably determines that Customer’s use of the Service is in violation of this Agreement. DNSF will give advance notice of the suspension, to the extent it is able without causing undue harm or risk. DNSF will restore access to the Service in a prompt manner after the underlying cause is mitigated.
2.3. Suggestions. DNSF shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into its products and services any suggestions, enhancement requests, recommendations or other feedback provided by or on behalf of Customer or its Users relating to the operation of the Products.
3. Fees & Payment.
3.1. Fees. Customer shall pay all fees set forth in an Order (the “Fees”). If Customer is purchasing through a Reseller, the applicable Fees will be set forth in Customer’s ordering documentation with the Reseller and such Fees will be remitted to Reseller. Except as otherwise set forth in an Order, all Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable. Unless otherwise agreed to in an Order, in the event that Customer’s actual usage exceeds limitations set forth in an Order, overage charges shall apply as set forth on the applicable Order or, if not set forth in the Order, based on DNSF’s then-current rates. Customer shall remit such charges to DNSF. Customer agrees that its purchase of the Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by DNSF with respect to future functionality or features.
3.2. Invoicing and Payment Terms.
(a) Online Purchases. Online Purchases will not require an invoice and Customer will be billed automatically in accordance with the Subscription Term selected by Customer at the time of the purchase. Should automatic billing fail to occur for any reason, DNSF will issue an electronic invoice with the full payment corresponding to the billing period as indicated on the invoice, and such charges are due thirty (30) days from the date of the invoice. A valid payment method is required to process the payment for Online Purchases.
(b) Offline Purchase. For purchases conducted through the execution of a written order, proposal, statement of work, or similar document, all Fees will be invoiced in advance and in accordance with the terms of the Order. Unless otherwise stated in an Order, charges are due thirty (30) days from the date of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information.
3.3. Third-Party Processing. DNSF may employ the use of third-party services for the purpose of facilitating payment and the completion of a Sale Transaction. By submitting payment information, Customer grants DNSF the right to provide the information to these third parties subject to the DNSF Privacy Policy located at the following link: https://www.dnsfilter.com/privacy-policy.
3.4. Overdue Payments. For those payments that are invoiced, any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute for which Customer has notified DNSF), at DNSF’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.5. Taxes. Customer is responsible for paying or self-assessing all applicable direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes (collectively, “Taxes”) associated with its purchases hereunder, above and beyond the Fees, excluding taxes based on DNSF’s net income or property, unless Customer provides DNSF with a valid tax exemption certificate authorized by the appropriate taxing authority. To the extent that any amounts payable are subject to withholding taxes, the amount payable shall be grossed up such that the amount paid to DNSF net of withholding taxes equals the amount invoiced by DNSF. Unless otherwise stated, all prices set forth in an Order are exclusive of Taxes.
4. Confidentiality.
4.1. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party may disclose Confidential Information to its Affiliates and service providers on a need-to-know basis, and such Affiliates and service providers may use such Confidential Information, in each case only for the purposes of fulfilling the Receiving Party’s obligations under this Agreement. The Receiving Party shall be liable to the Disclosing Party for all actions and omissions of its Affiliates and service providers with respect to such information as if such actions and omissions were those of the Receiving Party hereunder. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third-party without breach of any obligation owed to the Disclosing Party.
4.2. Protection. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care), and promptly notify the Disclosing Party upon discovery of any unauthorized access or acquisition of Confidential Information and reasonably cooperate with the Disclosing Party’s efforts to prevent, investigate and remediate the breach of confidentiality.
4.3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. In the event that the Receiving Party is nevertheless compelled to make such a disclosure, it shall disclose the minimum necessary Confidential Information to comply with such request.
4.4. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
4.5. Retention of Confidential Information. Upon a Party’s written request, the other Party will erase, delete or destroy all copies of Confidential Information of the other Party whether or not modified or merged into other materials, and certify in writing to the other Party that such Party has fully complied with these requirements. A Party may retain copies of Confidential Information that are required to be retained by law or pursuant to such Party’s reasonable document retention policies, or copies that are incapable of being destroyed because it would be unduly burdensome or cost prohibitive, provided that all such copies remain subject to the restrictions herein for so long as they are retained.
5. Third Party Software.
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, DNSF reserves all rights, title and interest in and to the Products (and any enhancements, modifications, or derivative works thereof, or other software development and works performed by DNSF), including all related intellectual property rights. No rights in the Products are granted to Customer hereunder other than as expressly set forth herein.
5.2. Open Source Software. Certain items of software included with the Products may be subject to “open source” or “free software” licenses (“Open Source Software”). Nothing in this Agreement limits Customers rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, DNSF makes such Open Source Software, and any DNSF’s modifications to that Open Source Software, available by written request to DNSF at the email or mailing address included in these Terms.
6. Data; Compliance.
6.1. Research Data. DNSF owns and retains all right, title, and interest in and to the Research Data, and shall have the right to use Research Data for its lawful business purposes, including for purposes of providing, maintaining, developing, and improving its Products. DNSF may monitor and inspect server, network, and traffic resolution data captured during DNS network resolution, including any related logs, as necessary to provide the Products and to derive and compile Research Data. DNSF will handle Research Data in compliance with applicable data protection laws.
6.2. Customer Responsibilities. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any content or data submitted or made available by it and its Users to the Service. Customer is responsible for all actions and omissions of its Users as if they were those of Customer hereunder. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any User, Customer will promptly notify DNSF and work with DNSF to promptly terminate access of any such User to the Service. DNSF reserves the right but not the obligation to remove, or request that Customer remove, any of Customer’s content or data from the Service that is reasonably believed to be unlawful or harmful to the Service. Customer is prohibited from providing any Sensitive Data to DNSF in connection with its use of the Service. DNSF disclaims any responsibility for or any liabilities resulting from Sensitive Data, including any unauthorized access or use of Sensitive Data that may be purposely or inadvertently provided by Customer to DNSF in connection with the Service.
6.3. Compliance with Laws; Data Processing Addendum. Each Party shall comply with all applicable local, state, national and foreign laws applicable to such Party in connection with this Agreement. Customer shall obtain any authorizations, consents or rights from Users that are required, and provide any necessary notifications, in each case for the transmission of Customer’s content or data to DNSF in connection with the Products and the related use and processing by such persons, including as may be necessary under any data protection laws and regulations. Each Party shall comply with the Data Processing Addendum, available at https://www.dnsfilter.com/data-processing-addendum, the terms of which are incorporated herein by reference.
7. Warranties & Disclaimers.
7.1. Warranties. Each Party represents that it has the legal power to enter into this Agreement. Each Party further represents that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any other person is required in connection with such Party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, DNSF AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DNSF DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DNSF OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY HEREIN. DNSF MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICE WITH WHICH THE PRODUCTS MAY INTEROPERATE.
8. Indemnification.
8.1. Indemnification by DNSF. Subject to Section 8.3, DNSF will defend at its own expense any action against Customer brought by a third-party alleging that the Products, in each case, as delivered, infringe any patents, copyrights or misappropriate any trade secrets, in each case, of a third-party, and DNSF will indemnify and hold Customer harmless against those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such action. If the Products become, or in DNSF’s opinion are likely to become, the subject of an infringement claim, DNSF may, at its option and expense, either: (i) procure for Customer the right to continue using the Products; (ii) replace or modify the Products so that they become non-infringing; or (iii) terminate the subscription to the infringing Products and refund Customer any unused, prepaid Fees for the infringing Products covering the remainder of the Subscription Term after the date of termination. Notwithstanding the foregoing, DNSF will have no obligation or liability under this Section 8.1 or otherwise with respect to any infringement or misappropriation claim based upon: (a) any use of the Products not in accordance with this Agreement; (b) any use of the Products in combination with products, equipment, software, or data not supplied or approved in writing by DNSF if such infringement would have been avoided but for the combination with other products, equipment, software or data; (c) any use of a prior release of the Software after a more current release has been made available to Customer; or (d) any modification of the Products by any person other than DNSF. THIS SECTION 8.1 STATES DNSF’S ENTIRE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION.
8.2. Indemnification by Customer. Subject to Section 8.3, Customer will defend at its own expense any action against DNSF brought by a third-party (including any User) arising out of or due to Customer’s use of the Service, and Customer will indemnify and hold DNSF harmless against those costs and damages finally awarded against DNSF in any such action or those costs and damages agreed to in a monetary settlement of such action.
8.3. Indemnification Conditions. “Indemnification Conditions” means the following conditions, which a Party must comply with to be entitled to the defense and indemnification obligations of the other Party under this Agreement. The indemnified Party must (i) notify the indemnifying Party promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim, provided that an indemnified Party’s failure to promptly notify shall only relieve the indemnifying Party’s indemnification obligations to the extent the indemnifying Party was prejudiced by such failure; (ii) give the indemnifying Party sole control of the defense thereof and any related settlement negotiations, provided that an indemnified Party may participate in its defense at its own cost and expense, and shall not make any admission of liability or take any other action that limits the ability of the indemnifying Party to defend or settle the claim; and (iii) cooperate and, at the indemnifying Party’s request and expense, assisting in such defense or settlement.
9. Limitation of Liability.
9.1. Limitation of Liability. NEITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO DNSF OR TO A RESELLER OF DNSF HEREUNDER FOR THE PRODUCT GIVING RISE TO THE LIABILITY IN THE 12 MONTHS PRECEDING THE INCIDENT, OR THE OTHER PARTY’S ACTUAL DAMAGES, WHICHEVER IS LOWER. THE FOREGOING SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR (i) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (ii) COST OF COVER, (iii) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. Term and Termination.
10.1. Term of Agreement. This Agreement commences on the date of the applicable Order and continues the remainder of the applicable Subscription Term.
10.2. Termination for Cause. Either Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach of this Agreement by the other Party if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. Effects of Termination. Upon expiration or termination of this Agreement all rights to use the Products (including all licensed rights for the Software) granted in this Agreement will immediately cease to exist and Customer must promptly discontinue all use of the Products.
10.4. Outstanding Fees. Termination does not relieve Customer of the obligation to pay any Fees accrued or payable to DNSF prior to the effective date of termination.
10.5. Surviving Provisions. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.
11. General Provisions.
11.1. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
11.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3. Notices. All notices under this Agreement shall be in writing and may be sent by electronic mail. Notices shall be deemed to have been given upon the second business day after sending by email. Notices to DNSF shall be sent to legal@dnsfilter.com. Notices to Customer, unless otherwise indicated by Customer, may be sent to the individual that executed this Agreement on behalf of Customer and/or an Administrator by email, or at the address listed at the beginning of this Agreement.
11.4. International Use. DNSF controls and operates the Services from the United States. DNSF does not represent that the Services are appropriate or available for use in other locations outside of the United States. Persons who choose to access the Services from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Customer agrees to comply with all applicable laws, rules and regulations in connection with its use of the Services. Without limiting the generality of the foregoing, Customer agree to comply with all applicable laws regarding the transmission or transfer of any data or technical information in connection with access to or use of the Services.
11.5. Waiver and Cumulative Remedies. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision of this Agreement. Other than as expressly stated herein, the rights and remedies provided herein are in addition to, and not exclusive of, any other rights and remedies of a Party at law or in equity.
11.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in force and effect.
11.7. Assignment. Neither Party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third-party without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise (limited to the scope of the pre-assignment business of the assigning Party), provided that such assignment is not to a competitor of the other Party. Unless otherwise specifically agreed to by the non-assigning Party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement. Any attempted assignment or transfer in violation of the foregoing will be null and void. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of DNSF and Customer.
11.8. Applicable Law and Venue; Jurisdiction. The laws of the State of Delaware, USA (without regard to any conflict of laws principles that would require the application of the laws of any other jurisdiction) govern this Agreement and all matters arising out of or relating to this Agreement, including, without limitation, validity, interpretation, construction, performance, and enforcement. Any dispute, action, claim or cause of action (including non-contractual disputes or claims) arising out of, relating to, or in connection with this Agreement or the Products shall be only brought in and is subject to the exclusive jurisdiction of the state and federal courts located in Delaware, USA. Each Party waives, to the fullest extent of the law, any objection to venue in such courts, and each Party hereby irrevocably submits and consents to the exclusive jurisdiction of such courts. To the extent permitted by law, the Parties expressly waive any right to trial by jury. In any action to enforce this Agreement the prevailing Party will be entitled to reasonable costs and attorneys’ fees.
11.9. Governing Language. The governing language for this Agreement and for negotiation and resolution of any disputes related to this Agreement is the English language. Each Party waives any right it may have under any law in any state or country to have the Agreement written in any language other than English.
11.10. Marketing and Publicity. Upon execution of this Agreement, DNSF may identify Customer as a customer of DNSF on DNSF’s website as well as within any written and/or electronic marketing material relating to DNSF’s products and/or services. Customer may revoke such permission at any time by sending a revocation to legal@dnsfilter.com.
11.11. Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a Party including but not limited to computer related attacks, hacking, war, sanctions, riots, any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or acts of terrorism, the Party so affected shall be excused from such performance and liability to the extent of such prevention or restriction. In the event that a third-party vendor of DNSF, such as a hosting provider, terminates or suspends its services to DNSF, or such services are otherwise materially impacted outside of DNSF’s reasonable control, DNSF may suspend its provision of the Services to Customer for the duration of such occurrence. In such event, DNSF will promptly use commercially reasonable efforts to establish alternate facilities and/or services, as a replacement.
11.12. Anti-Bribery. DNSF agrees not to provide, and Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any DNSF employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either Party learns of any violation of the above restriction, such Party will use reasonable efforts to promptly notify the other Party.
11.13. Headings, Advice of Counsel, and Drafting. Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section. The Parties acknowledge that they have been advised by counsel of their own choosing, or had the opportunity to seek such counsel, and that its terms will be interpreted without any bias against one Party as drafter.
11.14. Entire Agreement. This Agreement, including all exhibits hereto, and all Orders (which are incorporated herein by reference), constitutes the final agreement between the Parties. All prior agreements (including any click-through agreement associated with the Products), promises, assurances, understandings, proposals or representations, written or oral, concerning the subject matter contained in this Agreement, are expressly superseded by this Agreement. Each Order that is executed by Customer incorporates the terms of this Agreement in effect as of such date of execution. Any prior or contemporaneous non-disclosure, confidentiality, or similar agreement between the Parties is expressly superseded by this Agreement and the confidential or proprietary information previously disclosed thereunder shall become “Confidential Information” under the terms of this Agreement as if originally disclosed hereunder. In entering this Agreement, neither Party has relied upon any statement, promise, assurance, understanding, representation, warranty, or agreement of the other Party except for those expressly contained in this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are specifically and expressly rejected by DNSF and shall be null and void. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
11.15. Modifications, Amendments and Waivers. DNSF may amend these terms and other URLs incorporated herein from time to time by posting such amendment(s) at the associated URLs, or alternate URLs as may be provided to Customer by DNSF from time to time. Customer acknowledges and agrees that Customer’s continued use of the Products after the posting of such an amendment shall constitute Customer’s consent to such amendment and agreement to be bound by the same.
11.16. Counterparts. Any Orders may be executed by PDF or other electronic means, and in one or more counterparts, which taken together shall form one legal instrument.
12. Definitions.
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” means all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed or made available to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including without limitation, the terms and conditions of this Agreement, the Products, business and marketing plans, technology and technical information, pricing information, financial results and information, product designs, product roadmaps, results of penetration testing, security reports or audits and business processes.
“Malicious Code” means viruses, worms, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Offline Purchase” means the purchase by Customer of any Products through a written order, proposal, statement of work, or similar document agreed to by the Parties.
“Online Purchase” means the purchase by Customer of any Products through the DNSF website located at www.dnsfilter.com.
“Order” means, as applicable, (a) a written order, proposal, statement of work, or similar document agreed to by the Parties which incorporates or is subject to these Terms and evidences Customer’s purchase of DNSF Products, or (b) the online form submitted by Customer for the purchase of DNSF Products.
“Products” means the Service and the Software.
“Research Data” means any content or data that is (a) provided by DNSF to Customer as part of Customer’s use of the Products, or (b) created, compiled, generated, or derived by DNSF from the Products and Customer’s use thereof.
“Reseller” means an authorized reseller of DNSF.
“Sale Transaction” means the purchase of Products under this Agreement through either an Online Purchase or an Offline Purchase.
“Sensitive Data” means any data that constitutes “sensitive” or “special category” data under data protection laws, such as personal health information, credit card data, personal financial data, personal data revealing racial or ethnic origin, citizenship or immigration status, political opinions, religious or philosophical beliefs, trade union membership, data concerning health (including mental or physical health condition or diagnosis), or data concerning a natural person’s sex life or sexual orientation.
“Service” means hosted, software-as-a-service offerings provided by DNSF that are identified during an Online Purchase or on an Order.
“Software” means the downloadable software programs offered by DNSF that are identified on an Order or otherwise downloaded or installed by Customer, including in connection with its use of the Service. Software includes, but is not limited to, any roaming agents utilized in connection with the Service.
“Users” means any person authorized by Customer to access and use the Products. The specific number and types of Users that Customer is authorized to permit to utilize the Products may be set forth in an Order.