ThreatWave Domain Email Management Agreement

ThreatWave Domain Email Management Agreement

By clicking “I Agree” or using the ThreatWave Services (defined below), you agree to these terms of use, including any terms, policies, specifications and documentation referenced in these terms of use (together the “Terms of Use”).

If you are using the ThreatWave Services on behalf of an organization, you are agreeing to these Terms of Use for that organization and representing and warranting that you have the authority to bind that organization to these Terms of Use. In such case, “you” and “your” refers to that organization. “Us” or “we” refers to Switch Labs, Inc. d/b/a ThreatWave, a Delaware corporation with its principal place of business at 3 Park Ave, 41st Floor New York, NY 10016 (“THREATWAVE”).

NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, THREATWAVE and You, intending to be legally bound, hereby agree as follows:

1. Definition of Services; Engagement. This Agreement sets forth the terms and conditions of the THREATWAVE Services The “THREATWAVE Services” means the proprietary process by which THREATWAVE manages email traffic in connection with one or more domains specified by You (“Email Domain(s)”) to collect, process and redistribute message data, including but not limited to a) the aggregation of message statistics, b) the collection of message content and payloads for analysis and intelligence, and c) the delivery status notifications and non-delivery reports (“Bounce” or “Bounces”) sent in response to selected inbound messages in Your email traffic. At THREATWAVE™’s option, advertisements may be inserted into Bounces.

2. License. Under this Agreement, You hereby grant THREATWAVE a revocable, non-exclusive license to manage, at THREATWAVE’s option, the intake, routing, transmission and content of email (collectively the “Email Traffic”) for your Email Domains for the duration of this Agreement. THREATWAVE may, in its sole discretion for any reason or for no reason at all, temporarily or permanently stop or modify the intake, routing, transmission or content for your Email Domain(s), and hold and optionally nullify any related payments. You agree that THREATWAVE and its directors, officers, employees, contractors, representatives, agents and affiliates are not liable for loss or damages resulting from such stoppage or modification. Each party will bear the entire cost, taxes, and expense of conducting its business in accordance with the terms of this Agreement.

3. Enrollment. You agree to employ good faith efforts to make any and all configuration changes reasonably necessary for each of Your Email Domains to be managed by THREATWAVE, provided You shall not be required to incur any expense outside of the ordinary course of business. This includes but is not limited to changes to Mail Exchanger (MX) and TXT Resource Records in DNS for Your Email Domains.

4. Prohibited Domain Names. You will not enroll any Email Domain under this Agreement if the person signing this Agreement on Your behalf knows that the Email Domain would infringe the trademark property rights of another. THREATWAVE retains the right to unilaterally and without notice cancel the enrollment of any Email Domain. You will indemnify THREATWAVE against any claims or suits arising from a breach of this section due to knowledge that an Email Domain infringes the trademark property rights of another. Examples of domain names that may prompt THREATWAVE to cancel enrollment include: (a) trademarks, company names, and names of specific natural persons (including misspellings); (b) words which would evoke a question of legality, such as automatic weapons or military-style assault weapons, cracked or pirated software, falsely obtained passwords, prostitution services and questionable substances or words alluding to ingestion of questionable substances; (c) defamatory, libelous or threatening language, such as racial or religious epithets or language related to doing physical harm to people or their property; (d) vulgar or obscene language,; (e) any language that might advocate or glorify torture, rape or any other illegal or harmful act; and (f) any language that is sexually explicit.

4. Administrative Services. THREATWAVE may provide You with access to a web-based user account (“User Account”) that You may use to manage Your Email Domains, view reports of traffic to Your Email Domains, view reports of Your payments from THREATWAVE, and manage other configuration options for Your Email Domains as made available by THREATWAVE (collectively “Your Service Data”). You may not use another THREATWAVE customer’s account without our express permission. Account information must be true, accurate, complete and correct at all times. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to devices that can access Your account, for all activities that occur under Your account or password. If you have reason to believe that Your account is no longer secure (for example, in event of a loss, theft or unauthorized disclosure or use of Your ID or password you agree to immediately notify THREATWAVE at support@threatwave.com, and include in the subject line: “compromised account information”.

5. Data. THREATWAVE shall own all right, title and interest in the messaging data captured through management of Your Email Domains under this Agreement (the “Email Data”). The Email Data includes email messages captured in their totality, all routing and transmission data associated with email messages, and all aggregate and statistical data, information and analyses derived, and developed by THREATWAVE through Your use of the THREATWAVE Services.

6. Payment Terms. Payments are calculated monthly to determine Your qualified and earned Data Revenue and Advertising Revenue generated through Your Email Domains. Payments are made on NET 45 days terms. If the amount due to You under this Agreement is less than one hundred United States dollars (US$100), we will defer payment to You either until this Agreement is terminated or until the amount due to You under this Agreement is at least US$100. Fraudulent, questionable, or low-quality traffic to Your Email Domains will not be counted when determining Your payments due under this Agreement. This determination is and will be made by THREATWAVE in good faith. THREATWAVE is entitled to offset any refunds You are obligated to provide under this Agreement against any payments that would otherwise be due to You.

(a) Data Revenue Payments. Data Revenue is calculated using THREATWAVE™’s Data Contribution Algorithm, a proprietary data volume and quality function representing the resale value of Your email traffic to THREATWAVE™’s Data Partner network. THREATWAVE may in good faith modify the Data Contribution Algorithm at any time to (i) optimize earnings for You and (ii) optimize effectiveness of Your email traffic to our Data Partner network.

(b) Advertising Revenue Payments. Your Advertising Revenue share is fifty percent (50%) of THREATWAVE’s recognized and received Advertising Revenue and will be determined based on payments actually and subsequently collected from Advertisers.

(c) Taxes. It is Your sole responsibility to withhold any and all local, state, federal, and foreign taxes on payments that You receive pursuant to this Agreement, and You agree to indemnify THREATWAVE for any claim or assessment of taxes and any costs or damages relating thereto.

7. Prohibited Acts. Except as otherwise contemplated in this Agreement, You will not authorize or engage in, or engage or enable a third party, on Your behalf, to do any of the following: (1) transmission of automated email traffic to Your Email Domains or Email Domains of any THREATWAVE client; (2) You, Your employees, contractors or agents clicking on links in email messages transmitted on Your behalf by THREATWAVE via Your Email Domains, except in the course of normal individual use; (3) offering a user any pecuniary or other in kind inducement to transmit email to or click on links within Your Email Domains; (4) use of any Email Domain for the delivery of unsolicited commercial e-mail messages or any other illegal or dubious purpose or activity; or (5) any kind of traffic manipulation, including but not limited to inflation, deflation, or other adjustment of the inbound email traffic to Your Email Domains or clicks on links within Your Email Domains. Any inbound email traffic, email image impression, email link click or conversion generated in violation of this section shall not be counted for purposes of calculating any compensation owed to You, and may result in the termination of this Agreement, the forfeiture of payments due to You, or the cancellation of the enrollment of all or some of Your Email Domains.

8. Audit Rights. You acknowledge that THREATWAVE and its advertisers may employ various measures, including technological measures, on a random, scheduled, or continuous basis to identify fraudulent email traffic or clicks, and to verify any and all email traffic, click and data figures for Email Domains. THREATWAVE and its advertisers will in their sole discretion determine, using commercially reasonable means, what portion of Your email traffic, clicks, and data is genuine and utilize this determination to compute Your payments due under this Agreement.

9. Sublicensing and Assignment. When expressly permitted herein, this Agreement shall inure to the benefit of and be binding upon, the successors and permitted assigns of the Parties. Either Party may assign its rights and duties under this Agreement if in connection with any sale of all or substantially all of a Party™’s business or assets to another person (whether by means of a merger, consolidation, reorganization, sale of stock, sale of assets or otherwise). Otherwise, under no other condition shall either Party have the right to transfer, sell, lease, syndicate, sublicense or assign any of its respective rights under this Agreement, and any attempt to do so shall be null and void.

10. Implementation. You agree that the routing, transmission and content in email messages for Email Domains managed by THREATWAVE under this Agreement will be determined by THREATWAVE in its sole discretion, which shall be subject to change and modification by THREATWAVE at anytime. You acknowledge that THREATWAVE may change the content displayed in Bounces for Your Email Domains at any time.

11. Term. This Agreement will become effective upon the date of execution by You (the “Effective Date”) and shall continue in effect, unless terminated in accordance with the provisions of this Agreement.

12. Termination. Either Party may terminate this Agreement without cause upon 90 days prior written notice to the other Party. If either Party fails to perform any of its material obligations under this Agreement, the other Party may terminate this Agreement by giving 30 days prior written notice, provided that the matters set forth in such notice are not cured to the other Party™’s reasonable satisfaction within the 30-day period.

13. Settlement of Accounts. Upon expiration or termination of this Agreement, THREATWAVE will pay You the balance due to You as of the date of expiration or termination in accordance with the payment terms established by this Agreement. THREATWAVE will only be responsible for payments prior to the Effective Date of the termination. Each Party will bear the entire cost and expense of conducting its business in accordance with the terms of this Agreement.

14. Representations and Warranties. Each Party represents and warrants that: (1) it has all requisite power and authority to legally execute, deliver and perform its obligations under this Agreement, including ownership and/or control of the Bounces referenced herein; (2) this Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against each it by the other Party in accordance with the terms herein; and (3) it will comply with all laws applicable to the performance of its obligations and exercise of its rights under this Agreement. You represent and warrant that each Email Domain is duly registered; and either that You are the exclusive and official registrant for each Email Domain or that You are expressly and exclusively authorized by the official registrant of each Email Domain through a valid and enforceable written agreement to authorize THREATWAVE to provide the services contemplated under this Agreement as of the date and during the term such domain name remains a Email Domain managed by THREATWAVE. You further represent and warrant that You will use the information and services provided by THREATWAVE in a manner that complies with any and all applicable laws.

15. Advertising and Publishing Partners. THREATWAVE’s advertisers and publishing affiliates may terminate the display of links and results in the content of Email Traffic for any or all of Your Email Domains. In that event, THREATWAVE may attempt to provide You with comparable services, but THREATWAVE reserves the right to terminate this Agreement with You without penalty to THREATWAVE. This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement) with any remedy, claim, or cause of action or privilege against a Party.

16. Intellectual Property. Subject to the terms of this Agreement, each Party continues to own its respective items of intellectual property, including without limitation, its patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by THREATWAVE to You, or by any disclosure of any confidential information to You under this Agreement. You agree that You will not create or attempt to create a copy, derivative work, substitute service or substitute product using the THREATWAVE Services provided under this Agreement, or any information related thereto, or create any substantially competitive product.

17. Prohibited Uses. You may use the [Administrative Service] [THREATWAVE Services] only as a tool within Your business or Your organization and you shall not: (a) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the THREATWAVE Services in any way; (b) copy, distribute, or disclose any part of the THREATWAVE Services in any medium; (c) alter or modify the THREATWAVE Services in any way without the prior written consent of THREATWAVE; (d) You shall not and shall not enable any third party to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code in any way related to the THREATWAVE Services provided under this Agreement or any other technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation of THREATWAVE; (e) interfere with, or compromise the system integrity or security of, or decipher any transmissions to or from the servers running the THREATWAVE Services; (f) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (g) upload invalid data, viruses, worms, Trojan horses, or other harmful or disruptive codes, components, devices, or software agents through the THREATWAVE Services; (h) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity, or misrepresent the source or content of information transmitted through the THREATWAVE Services; (i) use the THREATWAVE Services or the THREATWAVE website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the THREATWAVE website; (j) bypass the measures we may use to prevent or restrict access to the THREATWAVE Services; (k) use any robot, spider, scraper, script, or other automated technology to access the THREATWAVE Services for any purpose without our express written permission; (l) gain unauthorized access to the THREATWAVE Services, its user accounts, computer systems or networks through unauthorized means such as hacking or password mining; and (m) collect or harvest any personally identifiable information, including account names, from the THREATWAVE Services.

18. Confidentiality.

(a) As used herein, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated in writing as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Service Data; Our Confidential Information shall include non-public information about the THREATWAVE Services and the data licensed to us; and Confidential Information of each party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party in the course of this Agreement. However, Confidential Information (other than Your Service Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

(b) Except as otherwise permitted in writing by the Disclosing Party, (a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

(c) You shall keep confidential all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementations, documentation, functional and interface specifications, customer information, pricing information, marketing information and other information related to the subject matter of this Agreement, whether written, transmitted, or oral, including but not limited to URLs, parameters, data reported, gross revenue figures, net revenue figures, amounts paid to You by THREATWAVE, the terms of this Agreement, and the look, feel and functionality of the service. You may not make any statements in any medium concerning the content displayed on Your Email Domains, including statements concerning its source or origin.

(d) Neither Party will disclose the terms of this Agreement to any third party without the other Party™’s prior written consent, except as required by securities or other applicable laws; provided that each Party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing, (b) in confidence, to lawyers, accountants, banks, and financing sources and their advisors, (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement, or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
You acknowledge and agree that THREATWAVE may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any information provided by you violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of THREATWAVE, its users, or the public.

19. Publicity. Each Party may identify its working relationship with the other through use of the other Party’s logos in promotional materials and references on their respective corporate websites so long as the appropriate Party in writing, in advance, approves such identification. Neither Party shall publish a press release about the existence or terms of this Agreement or transactions thereof, without the other Party’s prior written consent. Such consent shall not be unreasonably withheld. Any such approval will be revocable.

20. Limitation of Liability. IN NO EVENT WILL YOU, THREATWAVE OR ANY THIRD PARTY BENEFICIARY TO THIS AGREEMENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF YOU, THREATWAVE OR SAID THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND THREATWAVE FURTHER DISCLAIM ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION; FORCE MAJEURE; SERVICE DELAYS OR INTERRUPTIONS; NON-DELIVERY OR MISDELIVERY OF DATA; ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION PROVIDED UNDER THIS AGREEMENT; AND INFRINGEMENT. ANY LIABILITY OF THREATWAVE TO YOU RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED OR TO BE RECEIVED AND RECOGNIZED BY THREATWAVE WITH RESPECT TO YOUR EMAIL DOMAIN(S) IN THE ONE (1) MONTH PRECEDING YOUR CLAIM AGAINST THREATWAVE. ANY LIABILITY OF YOU TO THREATWAVE RELATING TO THE PERFORMANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT IS LIMITED TO THE GROSS REVENUE RECEIVED OR TO BE RECEIVED BY YOU IN THE ONE (1) MONTH PRECEDING THREATWAVE’S CLAIM AGAINST YOU. YOU AGREE THAT YOU AND THREATWAVE HAVE RELIED ON THIS PROVISION IN ALLOCATING RISK AND THAT, IN ITS ABSENCE; THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SURVIVES ANY TERMINATION OR EXPIRATION OF THE AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY SORT RESULTING FROM TERMINATING THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS, UNLESS SPECIFIED OTHERWISE.

21. Disclaimer of Warranties. ALL PRODUCTS, SERVICES, INFORMATION, AND DATA PROVIDED TO YOU UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTY OF ANY KIND. THREATWAVE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THE QUALITY AND AVAILABILITY OF TECHNICAL SUPPORT. THREATWAVE ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH ACCESS TO OR USE OF THE THREATWAVE SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, THREATWAVE DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE EMAIL DOMAIN(S) WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR SIMILAR SOFTWARE; THAT ANY INFORMATION OR DATA AVAILABLE ON OR THROUGH THE EMAIL DOMAINS WILL BE FREE OF ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; THAT THE FUNCTIONS OR SERVICES PROVIDED BY THREATWAVE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREWITH WILL BE CORRECTED; THAT THE SERVICES PROVIDED BY THREATWAVE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES PROVIDED BY THREATWAVE UNDER THIS AGREEMENT WILL OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA; OR THAT YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM THREATWAVE. YOU ACKNOWLEDGE THAT THREATWAVE CANNOT AND DOES NOT CHECK TO SEE WHETHER ANY SERVICES OR YOUR USE OF THE SERVICES UNDER THIS AGREEMENT INFRINGE THE LEGAL RIGHTS OF OTHERS.

22. Indemnification. Subject to the limitations of Section 20 above, You at Your own expense will indemnify, defend and hold harmless THREATWAVE and its employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against THREATWAVE by another based on or arising from any claim or alleged claim arising out of Your intentional or grossly negligent actions in the operation of the Email Domains; any claim or alleged claim arising from Your intentional or grossly negligent actions under this Agreement; a third party claim that Your Email Domain(s) infringe any copyright, trade secret or trademark of a third party; or Your use of the services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. Subject to the limitations of Section 20 above, THREATWAVE will, at its own expense, indemnify, defend, and hold harmless You and Your employees, directors, officers, representatives, agents and affiliates against any claim, suit, action, or other proceeding brought against You by another based on or arising from any claim or alleged claim arising out of THREATWAVE’s intentional or grossly negligent actions in the operation of the Email Domains; any claim or alleged claim arising from THREATWAVE intentional or grossly negligent actions under this Agreement; a third party claim that the THREATWAVE Services or any link or content embedded in the Email Domain(s) infringe any copyright, trade secret or trademark of a third party; or THREATWAVE ‘s use of the services provided under this Agreement in any manner inconsistent with or in breach of this Agreement. You and THREATWAVE will not enter into a settlement or compromise of any such claim without the other party’s prior written consent, which shall not be unreasonably withheld. The parties’ obligation under this section extends to any and all costs, damages, and expenses, including, but not limited to, actual attorneys’ fees and costs awarded against or otherwise incurred by THREATWAVE in connection with or arising from any claim, suit, action or proceeding.

23. Waiver. Neither Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement through failure to act, delay in action, or otherwise, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered by the Party against whom the waiver is being asserted.

24. Choice of Law; Forum. This Agreement is governed by and construed in accordance with the laws of the State of Colorado. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement will be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing THREATWAVE™’s principal place of business.

The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees, costs and disbursements incurred in connection therewith.

25. Notice. Any notice or other communication required or permitted to be delivered to THREATWAVE under this Agreement shall be in writing and deemed properly delivered by certified mail, return receipt requested, to Switch Labs, Inc., 908 Main Street #310, Louisville, Colorado 80027, Attn: THREATWAVE. Any notice or other communication required or permitted to be delivered to You by THREATWAVE under this Agreement shall be deemed properly delivered by email to the contact address that You have provided to THREATWAVE in Your User Account.

26. Entire Agreement; Merger; Severability. This Agreement, incorporating any other applicable THREATWAVE policies and any modifications that may be made hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

27. Amendments. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party,

28. Survival. The following provisions shall survive the termination of this Agreement: Sections 5 (data), 6 (payments), 13 (settlement of accounts) 16 (intellectual property), 17 (prohibited uses), 18 (confidentiality), 20 (limitation of liability), 21 (disclaimer of warranties), 22 (indemnification), 24 (choice of law), and 25 (notice).

29. Breach. In addition to any other remedy at law or equity for a breach of any provision of this Agreement, THREATWAVE retains the right to terminate this Agreement with You in response to any breach without prior notification or warning, along with forfeiture of any moneys due You.

30. No Agency Created. You and THREATWAVE are independent contractors, and nothing in this Agreement creates or will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the Parties. You have no authority to make or accept any offers or representations on behalf of THREATWAVE.

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