Terms of Service | Trustwell

Trustwell Terms of Services and End User License Agreement

The Terms of Service and End User License Agreement (“Agreement”) is entered into between ESHA Research, LLC dba Trustwell, an Oregon limited liability company, (“ESHA” and/or “Trustwell”), and you, the party executing this Agreement (“you” and/or “Licensee”) (each a “party” and collectively “parties”).

RECITALS

Trustwell is in the business of developing, maintaining and marketing software applications and databases used for recipe development, nutritional analysis, regulatory information and labeling. Trustwell has developed, and is the sole owner of, various software and database products used for nutritional analysis and regulatory review purposes. (“Trustwell Software”). Trustwell is providing you with a license to use selected Trustwell Software products through a hosted application operated by Trustwell and/or any third-party vendors, Affiliates or contractors, Inc. (“Trustwell and/or any third-party vendors, Affiliates or contractors,”), which utilizes third-party software (“Third Party Software”) developed by Trustwell and/or any third-party vendors, Affiliates or contractors, Microsoft and other third parties (“Third Party Vendors”).

You have selected and purchased a license for one or more Trustwell Software products bundled with applicable Third-Party Software (collectively, the “Licensed Software”). You have selected in your Order Form a scope of license for the Licensed Software specifying your access rights, who is authorized to use the Licensed Software, and for what purposes you may use the Licensed Software (the “License Scope”) and are agreeing to all of the terms, conditions, warranties, and covenants contained in this Agreement regarding the Licensed Software.

DEFINITIONS

“Affiliate” 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.

“Applicable Law” means federal, state, local, and foreign laws, rules, regulations, orders, directives, and other similar instruments including interpretations with the force of law that apply to the performance of the parties hereunder.

“Authorized User(s)” means an individual who is authorized by Client to use the SaaS Applications or Services, and to whom Client (or Company at Client’s request) have supplied a user ID and password. Authorized Users include, Client’s employees, consultants, contractors, agents, vendors and third Parties with which Client transacts business.

“Confidential Information” means any non-public, proprietary information obtained by a party (“Receiving Party”) whether in oral, written, demonstrative, graphic, electronic, machine readable, or in other tangible or intangible form, that relates to past, present or future products, services, marketing, research, development, information technology or business activities of the disclosing party (“Disclosing Party”) or its Affiliates or their respective employees, customers or suppliers and any analyses, compilations, studies or other documents prepared by the Disclosing Party that contain or otherwise reflect such information. Without limiting the generality of the foregoing, Licensee’s Confidential Information includes Licensee’s Data and Personal Data; Trustwell’s Confidential Information includes the Licensed Software, Nutritional and Regulatory Content, and Services and any components thereof, including Trustwell Content.

“Documentation” means, for the Licensed Software, the technical documentation, specifications and online help documents, including administrator and user guides, normally made available by the Trustwell in connection with the Licensed Software, as modified from time to time by Trustwell.

“Trustwell Content” means any and all data and information that Trustwell makes available via the Licensed Software, which originate in Trustwell or sourced by it, including nutritional and regulatory databases.

“IPR” means intellectual property rights in and to patents, trademarks, service marks, trade and service names, copyrights, database rights and design rights (regardless of registration, and including applications for registration), know-how, moral rights, trade secrets, confidential and proprietary information, all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world now existing or hereafter arising.

“Licensee Data” means any and all data, content and information, including Personal Data: (a) entered, uploaded, submitted, shared, posted, transmitted via the Licensed Software by Licensee, or on its behalf; or (b) described in the applicable Order Form.

“Licensed Software” means the Trustwell software applications and Trustwell Content included therein available on the Trustwell software platform that are specified in an Order Form as described in the Documentation. Expressly excluded are Non-Trustwell Applications.

TERMS

In consideration of the above recitals and the terms, representations, warranties, covenants and conditions below, the parties agree as follows:

Grant of License. Subject to the terms and conditions below, Trustwell grants to you a limited, nontransferable, nonexclusive license, for the duration of the License Term, to access and use through the Internet the Licensed Software specified in the Order Form as follows.
1. In the event you have licensed an Trustwell software application, including but not limited to ESHATrak®, REX®, or any other Trustwell licensed product or service tool, you shall have the right to access and use through the internet, for the licensed number of users specified in the Order Form, the Trustwell software application together with applicable Third-Party hosted service, for the sole purpose of the Licensee’s own personal access.
Scope of License. You are licensed to allow each individual Authorized User established and paid for by Licensee to access and use the applicable Licensed Software, provided that no Authorized User may share his or her login credentials. Licensee expressly acknowledges and agrees that Authorized Users’ compliance with the terms of this Agreement is a condition to their enrollment, access to and continued use of the Licensed Software and failure to comply may result in suspension or termination. Licensee is responsible for all actions and omissions by Authorized Users and for each Authorized User’s compliance with the terms of this Agreement and with Applicable Laws.
Limitations on License. Licensee may use the Licensed Software solely for its internal business use by its own employees, consultants, advisors or agents in the manner licensed in this Agreement. The Licensee is not licensed to do any of the following: (a) copy, sublicense, rent, lease, lend or otherwise transfer, disclose or publish the Licensed Software (or any portions thereof), or in any manner transfer or assign Licensee’s rights under this Agreement without the prior written consent of Trustwell; (b) use the Licensed Software for any purpose other than the purposes specifically licensed herein; (c) use the Licensed Software for the benefit of third parties or as part of its own commercially licensed products or services; (d) remove or obscure the Trustwell copyright or trademark notices, or those of applicable Third Party Vendors, appearing on or with the Licensed Software; (e) compile the Licensed Software from one form to another or attempt to interfere with, disable, modify, convert, reverse engineer, reverse compile, change or reverse assemble it; (f) compile, extract, strip, mine, harvest or otherwise collect, directly or indirectly, the data from the nutritional database embedded within the Licensed Software; (g) post or transmit on or through the Licensed Software host server any libelous, obscene or otherwise unlawful information of any kind; (h) engage in any conduct involving the Licensed Software or its host server(s) that would constitute a criminal offense or give rise to civil liability under any local, state, federal or other law or regulation; (i) engage in any activities that would interfere with or disrupt use of the Licensed Software or its hosting server(s) by others, including, without limitation, distributing “spam,” attempting the unauthorized access to data belonging to third parties, or knowingly introducing, or permitting to be introduced, into or through the server(s) hosting the Licensed Software any worm, virus, Trojan horse or other malware or spyware; or (j) use the Licensed Software or its hosting server(s) for any use in which the failure of the Licensed Software or its hosting server(s) could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.
License Fees. Licensee shall pay Trustwell license fees in the amounts, and upon the terms, set forth in the Order Form. All fees due shall be stated and paid in U.S. Dollars. The fees set forth are exclusive of all taxes, levies, or duties imposed by taxing authorities, and payment of all applicable federal, state, local, and foreign sales and use taxes, ad valorem taxes, value-added taxes, tariffs, and duties shall be the sole obligation of Licensee. If any undisputed fees owing by Licensee under an Order Form is more than thirty (30) days overdue, Trustwell may, without limiting Trustwell’s other rights and remedies, suspend access to the Licensed Software until such fees are paid in full.
Maintenance and Updates. Trustwell may automatically update the Licensed Software, including the nutritional or regulatory databases contained therein, with whatever updates it has, in its sole discretion, prepared for commercial release from time to time.
Proprietary Rights.
1. Trustwell Ownership. As between the parties, all right, title and interest, and any and all IPR in the Trustwell software platform and any components thereof including the Trustwell Content underlying the Licensed Software and in any Statistical Information are and shall remain the sole and exclusive property of Trustwell.
2. Trustwell Content. Notwithstanding anything to the contrary. the public availability of Trustwell Content or portions thereof, shall not in any manner, reduce or limit Trustwell’s proprietary rights in Trustwell Content or Licensee’s confidentiality obligations with respect thereto, and the use of Trustwell Content shall be strictly subject to the scope of license and any restrictions set forth herein. Licensee, its Affiliates and Authorized Users shall refrain from disclosing, using or relying on any Trustwell Content and any related output of the Licensed Software, to develop competitive products or services.
3. Licensee Data. As between the Parties, all right, title and interest, including all IPR in Licensee Data are and shall remain the sole and exclusive property of Licensee. Licensee grants to Trustwell a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Term to use such Licensee Data in order to deliver the Licensed Software. LICENSEE HAS SOLE RESPONSIBILITY AND TRUSTWELL EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, AND APPROPRIATENESS OF LICENSEE DATA. Licensee has obtained and will continue to obtain all rights, licenses and permissions necessary for Trustwell to use the Licensee Data in the provision of Services as contemplated hereunder, including to transmit Licensee Data to and share it with third parties per Licensee’s instructions.
4. Statistical Information. Trustwell may derive and compile, either manually or automatically, Statistical Information and use it for its business purposes, including for operations management, testing and improvement, research and development. “Statistical Information” means analytics, statistical and other information derived from data related to or used in connection with the Licensed Software by Licensee or Authorized Users that is anonymized or aggregated with other data captured in the Licensed Software pertaining the performance, operation and use of the Service.
5. Reservation of Rights. All rights not expressly granted to Licensee herein are reserved by Trustwell. There are no implied licenses to Trustwell products or services, including the Licensed Software, Services or other IPR of Trustwell.
Licensee’s Obligations to Protect the Licensed Software. As a continuing condition of the licenses granted herein, Licensee covenants to use the Licensed Software only for the purposes set forth in this Agreement and for no other purpose and shall use commercially reasonable efforts to protect the Licensed Software from unauthorized use, reproduction, publication, or distribution.
Lawful Use. Licensee (by and through itself and its Authorized Users) shall at all times use the Licensed Software in full compliance with all laws and regulations.
Indemnification.
1. By Trustwell. Trustwell shall, at its sole cost and expense, indemnify, defend and hold harmless Licensee, its Affiliates and its and their respective officers, directors, equity holders, employees, counsel, consultants and agents (“Indemnitees”) from and against all losses, liabilities, costs, damages and expenses, including but not limited to reasonable legal fees and expenses finally awarded against Licensee or amounts paid by Licensee (“Losses”), incurred or suffered by any of them as a result of third party claims, actions or demands (“Claims”), arising out of or in connection with infringement or misappropriation of IPR resulting from the authorized use of the Licensed Software. The foregoing shall not apply to the extent a Claim against Licensee arises from a Non-Trustwell Application.
2. By Licensee. Licensee shall, at its sole cost and expense, indemnify, defend and hold harmless Trustwell Indemnitees from and against all Losses, incurred or suffered as a result of third party Claims arising out of or in connection with (i) the unauthorized use of the Licensed Software; or (ii) Licensee Data.
3. Process. The indemnified party shall provide the indemnifying party with prompt written notice and copies of relevant documentation regarding any claim or action for which indemnification may be sought. Failure by the indemnified party to give such notice to the indemnifying party shall not relieve the indemnifying party of its indemnification obligation under this Agreement except to the extent that such failure materially disadvantages the indemnifying party. If the indemnifying party fails to appoint an attorney within ten (10) business days after it has been notified in writing of any such claim or action, the indemnified party will have the right to select and appoint an attorney and the reasonable cost and expense thereof will be paid by the indemnifying party. The indemnifying party shall control the defense of any such claim, provided however that it shall not settle, compromise or consent to the entry of any judgment, unless such settlement, compromise or consent includes an unconditional release of the relevant indemnitees from all liability arising out of such claim or action, and is solely monetary in nature and does not include a statement as to, or an admission of culpability or failure to act by or on behalf of, the relevant indemnitees or otherwise adversely affect any of them. The indemnified party shall reasonably cooperate with the indemnifying party in the defense thereof at the indemnifying party’s expense.
4. Additional Actions by Trustwell. Without limiting either party’s indemnification obligations, if Trustwell’s Licensed Software are enjoined for any reason or if Trustwell believes they may be enjoined then Trustwell shall have the right, at its own expense and in its sole discretion, to: (i) procure for the Licensee the right to continue using the applicable Licensed Software, (ii) to modify the Licensed Software as applicable, or any parts thereof or re-direct the manner in which they are used such that they become non-infringing, or (iii) to replace the service or any parts thereof, as applicable with non-infringing materials, or if none of the foregoing is commercially reasonable, terminate the Agreement and refund on a pro-rata basis the Fees paid by Licensee for the period such Licensed Software was not available or usable.
5. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
Security Safeguards.
1. Trustwell will maintain the following minimum security safeguards: (a) appropriate technical, physical, administrative and organizational controls designed to maintain the confidentiality, security and integrity of Licensee’s Confidential Information, including Licensee Data, (b) systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regular testing and monitoring of the effectiveness of such systems and procedures, including, without limitation, through vulnerability scans and penetration testing, (c) a team of employees dedicated to implementation and maintenance of security controls, and (d) annual assessment of risks that could result in unauthorized disclosure, misuse, alteration, destruction or other compromise of Licensee’s Confidential Information, including Licensee Data, and of the sufficiency of systems and procedures in place to mitigate those risks. On request, Trustwell will provide to Licensee its SOC 2 type 2 independent audit summary report, which shall be considered responsive to Licensee requests for Trustwell security information.
2. For on-premise or on-site deployments of the Licensed Software, Licensee shall be responsible for obtaining and using its own anti-virus, anti-Trojan, anti-malware, and internet security software and appliances. Licensee is responsible for using appropriate internet and network security devices and/or software to ensure that no third parties (e.g. hackers) take advantage of the fact that Licensee’s computers are connected to the internet or are accessing Licensed Software through the internet.
3. While Trustwell is under no obligation to do so, it may, in its sole discretion, and without further notice, monitor, and investigate access to and use of the Licensed Software in hosted Trustwell environment. Trustwell may block or suspend Licensee or Authorized Users’ use of the Licensed Software without liability: (i) if there is a significant threat to the functionality, security, integrity, or availability of the Licensed Software, (ii) if Trustwell reasonably believes that the Licensed Software are being used in violation of the Agreement, Trustwell’s copyright policy or Applicable Law, (iii) if requested by a law enforcement or government agency or otherwise to comply with Applicable Law, or (iv) to protect the rights, property and safety of Trustwell, Licensee, Authorized Users and the public, or as otherwise specified in the Agreement. To verify Licensee’s compliance with this Agreement, Licensee shall cooperate with and provide such applicable information as is reasonably requested by Trustwell from time to time.
User Accounts and Security. Licensee shall promptly provide Trustwell with complete and accurate information required to establish a login identity and password for Licensee’s authorized individual users so they may access the Licensed Software. Licensee is solely responsible for maintaining the confidentiality of the user IDs and passwords of its Authorized Users, and for logging out of Licensee’s account at the end of each session. Neither Trustwell nor its Third-Party Vendors will be responsible for any losses or damages incurred as a result of Licensee’s failure under this Section 11. Licensee shall notify Trustwell immediately of any unauthorized use of Licensee’s logon identities or passwords so that Trustwell may take appropriate actions.
Term of Agreement, Termination.
1. Agreement Term. This Agreement commences as of the date hereof and shall continue in effect so long as an Order Form is in effect. The initial term of an Order Form shall be set out therein and unless otherwise indicated shall be automatically renewed for additional twelve (12) months renewal periods (the initial term and each renewal term, “Term”), unless Licensee provides Trustwell with a written non-renewal notice thirty (30) days prior to the scheduled renewal date.
2. Termination for Material Breach. Either party may terminate this Agreement immediately upon written notice if the other party commits a material breach and (if capable of remedy) fails to remedy the material breach within thirty (30)-days of being notified to do so by the non-breaching party.
3. Outstanding Fees. The termination or expiration of the Agreement shall not relieve Licensee from any payment obligations with respect to fees accrued during Term, whether or not Licensee was billed for such fees during such Term or thereafter, unless Licensee terminates the Agreement or applicable Order Form in accordance with Section ‎12.2 in which case, Licensee shall be entitled to a prorated refund of any pre-paid fees for the remainder of the applicable Term.
4. Effect of Termination/Expiration. Upon termination or expiration of this Agreement, Licensee shall, unless otherwise instructed by Trustwell, immediately terminate all access to the applicable Licensed Software and cease any use thereof. No later than thirty (30) days following termination, if directed by the Disclosing Party, the Receiving Party shall destroy all Confidential Information, and upon request certify, in writing, the accomplishment of the obligations set forth in this Section. Notwithstanding the foregoing, to the extent Trustwell must retain Confidential Information to comply with regulatory record keeping requirements or where applicable, Trustwell needs to retain Confidential Information to ascertain the completion of certain services post-termination or expiration, Trustwell may retain such information for the required duration, provided that it shall apply the same protections set forth herein. For the avoidance of doubt Trustwell is not required to destroy Statistical Information which is Company IPR and Confidential Information.
Confidential Information.
1. Standard of Care. The Receiving Party shall preserve the Confidential Information of the Disclosing Party in confidence. The Receiving Party shall maintain, at a minimum, the same precautions and standard of care to which a reasonable person in such business would use to safeguard Confidential Information of its own and its clients or suppliers. Other than as permitted hereunder, the Receiving Party shall not, without first obtaining the other party’s written consent, disclose to any third party, or use for its own benefit (except as expressly contemplated herein), Confidential Information, during the Term of this Agreement and thereafter.
2. Limited Disclosure. The Receiving Party may disclose Confidential Information on a need-to-know basis to its authorized employees, contractors, agents, auditors, counsel and other representatives performing services for its benefit, solely as required for it to enjoy the benefits conferred by this Agreement and for the Parties to perform their respective obligations hereunder. All such Receiving Party’s representatives receiving Confidential Information, shall be bound by non-disclosure obligations consistent with this Agreement and the Receiving Party shall be responsible for any violation by such representatives of the confidentiality obligations set forth herein.
3. Legal Requirement. If Confidential Information is required to be disclosed by law, regulation or court order by either party, such disclosure shall be permitted to the extent legally required, provided that to the extent legally permissible, the Disclosing Party is given reasonable prior notice by the Receiving Party to enable it to seek a protective order or confidential treatment prior to such disclosure by the Receiving Party.
4. Scope Limitation. Confidential Information (other than Personal Data), does not include information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, (ii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who is not bound by a confidentiality agreement with the Disclosing Party, (iii) was known to the Receiving Party or in its possession prior to the date of disclosure by the Disclosing Party, (iv) is furnished by the Disclosing Party to the Receiving Party with written permission to disclose, or (v) is independently developed by the Receiving Party without reference to or use of Confidential Information.
Representations and Warranties.
1. Mutual. Each party represents and warrants as to itself that: (i) it has and will continue to have the authority and all necessary rights, licenses, consents, permissions, and approvals to enter into, to grant the rights and perform the duties and obligations described in this Agreement, (ii) the performance of its obligations hereunder does not conflict with any other agreement either signed or contemplated, and (iii) the performance of its obligations hereunder shall be in compliance with all Applicable Laws.
2. Limited Warranties. Trustwell represents and warrants to Licensee that the Licensed Software will materially perform the functions described in the Documentation, and the functionality and security controls will not materially decrease during any paid Term. In the event of any failure of these warranties, Trustwell will, at Trustwell’s sole option, and as Licensee’s sole and exclusive remedy, either repair the applicable Licensed Software or terminate the applicable Order Form or portion thereof and refund to Licensee a pro-rata amount of fees paid for the period during which the Licensed Software were rendered unusable. Trustwell further represents and warrants that Trustwell will perform the Services in a good, workmanlike and professional manner. Trustwell’s remedy for breach of this warranty of Services shall be the re-performance of the relevant Services free of charge.
Limitation of Warranties. Other than the warranties expressly set forth in this Agreement, Trustwell makes no other warranties, express or implied, and the Licensed Software shall be provided on an “as is” and “as available” basis. Trustwell specifically disclaims, to the fullest extent allowed by law, all implied warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and any warranties under the Uniform Computer Informational Transactions Act, as may be adopted by any jurisdiction from time to time.
Limits on Liability.
1. Damages Waiver. IN NO EVENT, SHALL TRUSTWELL, ITS AFFLIATES OR PROVIDERS BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOST TIME, LOST DATA OR LOST GOOD WILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
2. Cap. EXCEPT FOR CLAIMS ARISING UNDER OR RELATED TO IPR INDEMNIFICATION OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF TRUSTWELL OR ITS AFFILIATES FOR ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED, IN THE AGGREGATE, FIVE TIMES (5X) THE FEES PAID OR PAYABLE BY LICENSEE TO TRUSTWELL DURING THE TWELVE -(12) MONTHS PRECEDING THE CLAIM.
3. Conditions. The exclusions and limits in this Section ‎16 reflect the parties’ allocation of risk and will apply under any legal theory (including, without limitation, contract or tort), even where a party was aware of the possibility of such damages, the damages were foreseeable, or any remedies hereunder fail of their essential purpose.
Independent Parties. Trustwell and Licensee agree that Licensee is an independent licensee and that the relationship created by this Agreement is not that of employer and employee, partnership, joint venture, or franchise. Licensee further acknowledges that Trustwell’s Third Party Vendors are independent licensors and not partners or joint ventures. No independent party shall have the authority to bind or obligate any other party in any manner.
Non-Waiver. The failure or delay of either party to require performance of, or to otherwise enforce, any condition or other provision of this Agreement shall not waive or otherwise limit that party’s right to enforce, or pursue remedies for the breach of, any such provision or condition. No waiver by either party of any particular condition or provision of this Agreement, including this non-waiver provision, shall constitute a waiver or limitation on that party’s right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of this Agreement.
Successor Interests. This Agreement and the rights granted hereunder are not assignable or transferable by Licensee without the express written consent of Trustwell, which shall not be unreasonably denied or delayed. Subject to this restriction, this Agreement is binding upon and shall inure to the benefit of, the successors, assigns, and bankruptcy estates of each of the parties.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, as to all matters, including but not limited to matters of validity, construction, effect, performance, and remedies. In no event, shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Further, UCITA whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to this Agreement and is hereby disclaimed. In connection with any claims or disputes between the Parties arising out of or relating to this Agreement, each party consents to the exclusive jurisdiction and venue in Delaware.
Survival. The provisions of the Agreement that by their nature extend beyond the termination of the Agreement, will survive the termination of the Agreement, including but not limited to the following Sections: ‎2, ‎6, ‎9, 12.2, 13, 14.2, and ‎16.
Severability. If any court of competent jurisdiction finds any term of this Agreement or of any other document or instrument referred to or contemplated in this Agreement, to be invalid or unenforceable, such determination shall not affect the validity and enforceability of the remainder of the Agreement, and the court shall enforce the Agreement in such a manner as to give substantial effect to the intent of the parties as expressed in the Agreement.
Paragraph Headings. All paragraph headings in this Agreement appear for convenience of reference and shall not affect the meaning or interpretation of the Agreement.
Amendments. This Agreement may be amended or modified only by a written instrument executed and agreed upon by both parties, which expressly states the intent of the parties to modify or amend this Agreement.
Counterparts. This Agreement (including any Order Form) may be executed and delivered by electronic signature, facsimile or email in any number of counterparts, each of which shall be an original, but all of which together (including reproductions by photocopy or scan) shall constitute one instrument and be deemed delivery of an original.
Entire Agreement. This Agreement and the Order Form constitute the entire agreement between the parties pertaining to the subject matter of the Agreement and supersede all prior discussions, negotiations, understandings, representations, and agreements, whether oral or written. The Order Form shall, for all purposes, consist solely of the standard order documentation provided by Trustwell to you. No terms or conditions including purchase order or similar documentation provided by you, nor any amendments you make to Trustwell’s Order Form, shall be effective. All terms of this Agreement are contractual and not mere recitals.

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The parties acknowledge that they have read this Agreement, there is due consideration and that they agree to be bound by its terms. Each party has full power and authority to enter into and perform this Agreement.