These terms of service apply to clients in the US and Canada only.
1. PARTIES
This agreement is between Interfax US Inc ("we" or "ShieldQ"), of 7915 Westglen, Houston, TX 77063 US, and you ("you" or "Customer") as a registered user of ShieldQ services.
Whereas:
1. ShieldQ offers a unified inbound message and document storage solution for fax, email, uploaded documents and images to businesses and individuals.
2. The Customer wishes to avail of services whereby ShieldQ, at the Customer’s request, will receive and store messages, subject to the terms and conditions appearing hereinafter . Now it is hereby agreed as follows:
2. INTERPRETATION
2.1 The definitions and rules of interpretation in this clause apply to this agreement (“Agreement”) “Assessment Period” means the period of time between payment of the Initial Fee by the Customer and the Effective Date. “Confidential Information” has the meaning given to this term in clause 13.1. “Customer Account” means the Customer’s online ShieldQ account.
“Data Protection Incident” means an incident involving a security breach, unauthorized access, disclosure, destruction or accidental loss of personal data.
“Data Protection Laws” means appropriate federal and state privacy laws and accountability and enforcement components being used as a tool for enforcement by the Federal Trade Commission (FTC). This also includes further legislative, international conventions or EU charters adopted in respect of data protection and privacy matters.
“EEA” means the European Economic Area.
“Effective Date” means the date of signing of this Agreement or the date of commencement of the Services, whichever is the earlier.
“Fees” means the fees payable for each Service provided to the Customer under this Agreement, which are published on the ShieldQ website: www.shieldq.com/pricing
“Initial Fee” means the set up fee paid by the Customer to ShieldQ prior to the Effective Date.
“Initial Term” means 6 months from the Effective Date.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, confidential information rights (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“PCI DSS Service” means the ShieldQ service, which is PCI DSS Level 1-accredited.
“Personal Data” has the meaning specified in the Data Protection Laws.
“Prepaid Fees” are as described in clause 6.3.1.
“Prepaid Services” means Services that require a Prepaid Fee on[a](#cmnt1) the Customer Account as described in clause 6.3.1.
“Services” means the ShieldQ service.
“Term” means the Initial Term and any extension thereof in accordance with clause 3.3.
“Users” mean any ShieldQ users appointed by the Customer.
“Year” means a period of 365 days from a defined date (or, where that period includes the February 29th, 366 days) and expressions such as ‘Years’, ‘Yearly’ etc. shall be construed accordingly.
“Service Levels” means the service levels that apply to the availability of the Services.
“Support Services” means the support services pursuant to which the Customer’s issues and problems will be addressed that apply to the provision of the Services to the Customer.
2.2 Clause, and paragraph headings shall not affect the interpretation of this Agreement.
2.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
2.4 Words in the singular shall include the plural and vice versa.
2.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.6 A reference to writing or written includes faxes but not e-mail.
2.7 Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
2.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2.9 References to clauses are to the clauses of this Agreement.
3. COMMENCEMENT AND DURATION
3.1 ShieldQ shall provide the Services to the Customer under the terms and conditions of this Agreement. ShieldQ may subcontract any of its obligations in respect of the Services to a third-party service provider.
3.2 Shield-Q shall provide the Services to the Customer from the Effective Date.
3.3 The Services supplied under this Agreement shall continue to be supplied for the Initial Term and, after that, shall continue (unless terminated earlier under clause 11), until either party elects to terminate the Agreement by delivering written notice of termination to the other party at least 90 days before the desired date of such termination. All terms and conditions in this Agreement shall remain in effect during any renewal term, except as the parties otherwise expressly agree in writing.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that any information it provides to ShieldQ for ShieldQ to carry out the Services is complete and accurate;
(b) co-operate with ShieldQ in all matters relating to the Services;
(c) provide ShieldQ, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by ShieldQ;
(d) provide ShieldQ with such information and materials as ShieldQ may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licenses, permissions and consents which may be required before the date on which the Services are to start, including obtaining Users’ express consent to transmit Personal Data to ShieldQ wherever located; and
4.2 If ShieldQ’s performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) ShieldQ shall without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays ShieldQ’s performance of any of its obligations;
(b) ShieldQ shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default; and
(c) the Customer shall reimburse ShieldQ on written demand for any costs or losses sustained or incurred by ShieldQ arising directly or indirectly from the Customer Default.
5. FEES
5.1 In consideration of the provision of the Services by ShieldQ, the Customer agrees to pay the Fees. The Fees are exclusive of federal and state taxes chargeable for the time being and any other taxes as required to be added to the Fees by law.
5.2 The Customer shall be invoiced for the Initial Fee by ShieldQ for the system set up in accordance and such payment shall be made by the Customer in advance of the Effective Date.
5.3 After the Initial Term, ShieldQ may review and increase the Fees at its discretion, provided however, that ShieldQ shall give the Customer written notice of any such increase 90 days prior to the proposed date of any such increase and expiry of the Initial Term.
5.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay ShieldQ on the due date for payment, ShieldQ may:
(a) charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of HSBC Bank PLCaccruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. (b) suspend all Services until payment has been made in full.
5.5 All sums payable to ShieldQ under this Agreement shall become due immediately on its termination, despite any other provision. This clause is without prejudice any right to claim for interest under the law, or any such right under the Agreement.
5.6 The Customer is responsible for all Fees arising from use of its Customer Account, including unauthorized use (prior to the Customer notifying ShieldQ of such use and taking steps to prevent its further occurrence), provided that ShieldQ has operated in accordance with the Service Levels.
6. CUSTOMER ACCOUNTS
6.1 Fees may be paid by the establishment of a Customer Account. A Customer Account may be set up where the Customer is a qualified business account and has been approved by ShieldQ for corporate billing. The approval process may include a request by ShieldQ for the Customer to provide a deposit (“Deposit”).
Any Deposit paid by the Customer shall be returned to the Customer on the expiration of the Agreement PROVIDED, HOWEVER that ShieldQ reserves the right to use the Deposit to discharge any Fees outstanding from time to time. Fees will accumulate on the Customer Account each month and the Customer shall be invoiced on the first day of each month to the address of the Customer on the first page of this Agreement, unless an alternative address is notified to ShieldQ in accordance with this Agreement.
6.2 The Customer may view its Customer Account, along with billing details, by clicking on the toolbar "Account Management," available by logging in to www.ShieldQ.com
6.3 Prepaid Fees and Services
6.3.1 Some or all of the Services provided (“Prepaid Services”) may require a prepaid fee ("Prepaid Fee"). The Prepaid Fee, and all taxes and other fees related thereto will be paid by the Customer in advance of the Effective Date.
6.3.2 Prepaid Fees are payable by the Customer making an advance payment to its Customer Account of an agreed fixed amount, as per the ShieldQ website (www.ShieldQ.com/prices) or as notified to the Customer.
6.3.3 Prepaid Fees are charged immediately upon order of a Prepaid Service. The Prepaid Fees shall deplete and the amount on the Customer Account shall reduce based on usage of the Prepaid Service, according to standard ShieldQ messaging rates. The Prepaid Fees shall expire if unused for 12 months from the date of purchase or from the date of last use, whichever is later, except where such expiry is prohibited by law.
6.3.4 When the Prepaid Fees have expired or have been depleted through ongoing use of the Prepaid Services then, either:
(a) another fixed amount determined by the Customer will be immediately charged to the Customer; or
(b) the use of the Prepaid Service will be discontinued until the additional Prepaid Fee is made. Use may be controlled by the Customer through the online account administration interface.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and ShieldQ, all Intellectual Property Rights used by the Customer for the Term of this Agreement, shall be owned by ShieldQ. ShieldQ licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If the Agreement terminates, this license shall automatically terminate.
7.2 ShieldQ undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the use of the Service in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party (Infringement Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, clause 7.2 shall not apply where the Infringement Claim in question is attributable to possession, use of the Service by the Customer other than in accordance with the terms of this Agreement.
7.3 Clause 7.2 is conditional on:
(a) the Customer notifying ShieldQ in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
(b) the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of ShieldQ, which consent shall not be unreasonably withheld or delayed; and
(c) ShieldQ having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving ShieldQ all reasonable assistance in connection with those negotiations and such litigation at ShieldQ’s request and expense.
8. PCI DSS COMPLIANCE
8.1 The provisions of this clause 8 apply to any Customer that is being provided with the PCI DSS Service.
8.2 The PCI DSS Service involves the capture, transmission, storage and display of card by the Customer.
8.3 ShieldQ agrees that it is responsible for the security of cardholder data that it possesses.
8.4 ShieldQ confirms that, as of the Effective Date, it has complied with all applicable requirements to be considered PCI DSS compliant, and has performed the necessary steps to validate its compliance with PCI DSS.
8.5 ShieldQ agrees to supply the current status of its PCI DSS compliance status, and evidence of its most recent validation of compliance upon request by the Customer. ShieldQ must supply to the Customer a new status report and evidence of validation of compliance at least annually.
8.6 ShieldQ will notify the Customer if it learns that it is no longer PCI DSS compliant and will immediately provide the Customer with details of the steps being taken to remediate the non-compliance status. In no event should ShieldQ’s notification to the Customer be later than seven (7) days after ShieldQ learns it is no longer PCI DSS compliant.
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1 ShieldQ warrants that, during the term of the Agreement, the Services provided hereunder will be performed:
(a) in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of the Services; and
(b) substantially in accordance with the technical manuals and user documentation relating to the operation and use of the Services that are provided by ShieldQ to Customer under the Agreement. Such documentation will be made available to the Customer during the Assessment Period.
9.2 If, the Customer notifies ShieldQ in writing of any defect or fault in the Service, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Service or used it outside this Agreement, for a purpose or in a context other than the purpose or context for which it was designed, ShieldQ shall, at its option, do one of the following:
(a) repair the Service; or
(b) replace the Service; or
(c) terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer for any period in which the Service was paid for but not provided by ShieldQ, provided that the Customer provides all the information that may be necessary to assist ShieldQ in resolving the defect or fault, including sufficient information to enable ShieldQ to re-create the defect or fault.
9.3 ShieldQ does not warrant that access to or use of the Services will be uninterrupted or error-free. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9.4 The Customer accepts responsibility for the selection of the Service to achieve its intended results.
9.5 Subject to clause 9.8 below (and save as expressly provided for in clause 9.5.2 and in the Service Levels), ShieldQ shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even though ShieldQ was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss of data.
9.6 The total liability of ShieldQ to the Customer under this Agreement, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fees paid by the Customer for the Service for the previous Year of the Term. If the liability arises during the first Year of this Agreement, then the total liability of ShieldQ shall be the Fees paid to date.
9.7 The Customer agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement and ShieldQ shall have no liability otherwise than pursuant to the express terms of this Agreement.
9.8 The exclusions in clause 8.5 shall apply to the fullest extent permissible at law, but ShieldQ does not exclude liability for any other liability which may not be excluded by law.
10. DATA PROTECTION AND PRIVACY
10.1 ShieldQ is dedicated to establishing trusting relationships with its customers, based on respect for personal identity and information. ShieldQ’s Privacy Policy, a current copy of which is available at http://www.ShieldQ.net/privacy-policy outlines the handling of personal data collected by ShieldQ during the course of supplying the Services in accordance with the Data Protection Laws.
10.2 In the event that User’s Personal Data is ever transferred from a data center in the EEA under the control of ShieldQ, to a data center outside the EEA, ShieldQ confirms that it adopts model contracts for such data transfers which have been approved by the European Commission and the Data Protection Commissioner in Dublin, Ireland. A copy of the applicable contract can be furnished the Customer on request.
10.3 Data Protection Incident
10.3.1 Upon becoming aware of a Data Protection Incident, ShieldQ shall promptly notify the Customer in writing, detailing the circumstances and particulars thereof.
10.3.2 Notwithstanding the provisions of Service Levels and Support Services or other similar arrangement between the Customer and ShieldQ, in the event of a Data Protection Incident, ShieldQ shall make available at no cost to the Customer on a first priority, (available both by telephone and email) a dedicated IT security employee of ShieldQ knowledgeable about the Data Protection Incident to respond to questions, provide regular updates as may be appropriate under the circumstances regarding the Data Protection Incident, and ShieldQ’s own service provider's efforts to remedy the same, and to act on behalf of ShieldQ in coordinating Customer's and ShieldQ’s response and remedial efforts.
10.4 Corrective Measures
10.4.1 Upon the occurrence of a Data Protection Incident, ShieldQ shall take such reasonable corrective and mitigating measures as Customer may request and that are customary under the circumstances (such as providing breach notifications to affected individuals and/or Users.
10.4.2 If there is a Data Protection Incident, subject to clause 8.6, ShieldQ shall promptly reimburse the Customer’s expenses incurred in connection with the Data Protection Incident, upon receipt by ShieldQ of a written request detailing the costs and expenses actually incurred by the Customer for implementing corrective and mitigating measures taken by the Customer as a result of a Data Protection Incident, including, without limitation (a) the reasonable fees and disbursements of any security auditor, engaged by the Customer to conduct an inspection of the Data Protection Incident, and (b) any such measures required to be taken pursuant to any governmental or regulatory body, or that are customarily taken under the circumstances (such as providing breach notifications to affected Users and/or closing or reopening Customer subscribers’ accounts. 10.5.3 ShieldQ shall not issue any press release, provide any breach notification to affected individuals, or make any other public announcement concerning any Data Protection Incident without the prior written approval of the Customer with regard to the form, content and timing of such announcement, unless required by law. ShieldQ shall cooperate in good faith with the Customer in promptly responding to all inquiries pertaining to any Data Protection Incident.
11. INSURANCE
ShieldQ will maintain one or more policies of insurance with a reputable insurance company and/or underwriters to enable it to discharge its potential liabilities to the Customer under this Agreement and will at the Customer’s request produce for inspection a certificate of insurance evidencing such insurance.
12. TERM AND TERMINATION
12.1 Termination by either party for breach In the event of a material breach of the Agreement by either party, the non-breaching party may give written notice of such breach to the breaching party and, if the same is not cured within thirty (30) days after delivery of such notice, then the non-breaching party may terminate the Agreement by delivery of a written notice of termination by postal delivery at any time thereafter to the breaching party. Such termination shall be effective as of the date of the notice of termination or such later date, as set forth in such notice.
12.2 ShieldQ may terminate this Agreement 7 days after giving notice to the Customer if the Customer: (a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; (b) is unable to pay its debts (or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
12.3 Termination by either party in accordance with the rights contained in this clause 11 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
12.4 On termination for any reason: (a) all rights granted to the Customer under this Agreement shall cease; (b) the Customer shall cease all activities authorised by this Agreement; (c) the Customer shall immediately pay to ShieldQ any sums due to ShieldQ under this Agreement; and (d) provided the Customer has paid any Fees outstanding, ShieldQ shall work with the Customer to transfer all the customer details and transactions and data to another supplier and reserves the right to charge a reasonable fee for this assistance if required.
13. CONFIDENTIALITY
13.1 Confidential Information. In connection with the Agreement, each party hereto (a “disclosing party”) may disclose its confidential and proprietary information to the other party (a “receiving party”). Subject to the exceptions listed below, a disclosing party’s “Confidential Information” shall be defined as information disclosed by the disclosing party to the receiving party under the Agreement that is either: (a) clearly marked or otherwise clearly designated as confidential or proprietary; or (b) should be reasonably understood by the receiving party to be the confidential or proprietary information of the disclosing party. For the avoidance of doubt, all pricing under the Agreement is the Confidential Information of ShieldQ, and Customer data is the Confidential Information of the Customer.
13.2 Confidential Treatment. During the term of the Agreement and for ten (10) years after its expiration or termination, a receiving party shall not use, or otherwise disclose to any third party, a disclosing party’s Confidential Information without the prior written consent of the disclosing party. In addition, each party agrees to take reasonable measures to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed, or used in violation of the provisions of the Agreement (which measures shall be no less than that which a reasonable person would take with respect to like confidential, proprietary, or trade secret information).
13.3 Exceptions. Notwithstanding anything to the contrary, the obligations of the receiving party set forth in this Section shall not apply to any information of the disclosing party that: (a) is or becomes a part of the public domain through no wrongful act of the receiving party; (b) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof to the receiving party; (c) is developed by the receiving party completely independent from the Confidential Information of the disclosing party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice, if reasonably possible, such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
13.4 Remedies. The parties recognize and agree that money damages are an inadequate remedy for breach of thisclause 12 and further recognize that any such breach would result in irreparable harm to the non-breaching party. Therefore, in the event of any such breach, the non-breaching party may seek injunctive relief from a court of competent jurisdiction to enjoin such activity in addition to any other remedies available to it.
14. FORCE MAJEURE
No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of god, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 13 [b](#cmnt2)shall excuse the Customer from any payment obligations.
15. ARBITRATION
All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The place of arbitration shall be in the State of Delaware, US. The language of the arbitration shall be English.
16. GENERAL
16.1 Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
16.2 Severability. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
16.3 Amendments. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
16.4 Assignment
16.4.1 The Customer shall not, without the prior written consent of ShieldQ, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.4.2 ShieldQ may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.5 Entire Agreement. This Agreement and any documents referred to herein constitute the entire agreement between ShieldQ and the Customer regarding the Services, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement.
16.6 Modifications to the Agreement This Agreement may not be amended except in writing signed by both the Customer and ShieldQ.
16.7 Notices & Consent Notices given by a party to the other will be given by postal delivery. In any matter requiring a party’s prior consent, such consent will be considered given only if made in the foregoing manner by an authorized representative of the concerned party. Notices to ShieldQ by postal delivery must be sent to 7915 Westglen, Houston, TX 77063 US. Notices to the Customer by postal delivery must be sent at the addresses stated above in this Agreement.
16.8 By registering its details with ShieldQ the Customer may receive news updates, special offers and promotions from time to time. If the Customer does not wish to be contacted by ShieldQ, it shall send an email with ‘unsubscribe’ in the subject line to sales@shieldq.com
16.9 Governing law and jurisdiction. This Agreement shall be governed by, subject to, and interpreted in accordance with the laws in the state of Delaware in the United States of America.
17. MARKETING
ShieldQ is authorized, subject to final approval by a nominated employee of the Customer, to produce case study documents, marketing content, web content and collateral used for promotion of its services, referencing the installation of the ShieldQ service at www.shieldq.com.
