1 Month Free Terms & Conditions
Breach Secure Now Services Resellers Agreement
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO THE SERVICES BY YOU, YOUR CLIENT ENTITIES AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. IF YOU DO NOT AGREE WITH THE PROVISIONS OF THIS AGREEMENT YOU MUST NOT ACCEPT IT AND MAY NOT USE ANY OF THE SERVICES.
This Breach Secure Now Services Reseller Agreement (the “Agreement”) is entered into between Entegration Inc (d/b/a Breach Secure Now), a corporation organized and existing under the laws of New Jersey with its principal place of business at 55 Madison Avenue, Morristown NJ (hereinafter referred to as the “Breach Secure Now”) and the participating Reseller, (hereinafter referred to as the “Reseller”), collectively referred to as the “Party” or “Parties.”
NOW, THEREFORE, the Parties agree as follows:
Section 1. Appointment.
Breach Secure Now hereby appoints the Reseller as an independent non-exclusive sales representative to promote and sell the Services marketed under the Breach Secure Now brand, subject to all of the terms and conditions of this Agreement. Breach Secure Now acknowledges that the Reseller retains the right to market services on behalf of other service providers, which are the same or substantially similar to the Services described herein. The Reseller acknowledges that this is a non-exclusive appointment and that Breach Secure Now retains the right to appoint additional representatives, without liability or obligation to the Reseller.
Section 2. Intellectual Property.
2.1 License Grant: Breach Secure Now hereby grants a non-exclusive, non-transferable, non-assignable and royalty-free worldwide license to the Reseller for the Term (as defined herein) of this Agreement, to use the name, logotype, trademarks, slogans, brochures, sales literature, and other works of authorship of Breach Secure Now that have been or that may hereinafter be provided by Breach Secure Now; provided, that any such use shall be subject to the prior approval of Breach Secure Now (which approval shall not be unreasonably withheld, conditioned or delayed) and shall be in accordance with any reasonable guidelines for and restrictions on such use that may be provided to Reseller by Breach Secure Now.
2.2 Protection: Breach Secure Now desires to protect its valuable intellectual property and shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”, “Intellectual Property”). The rights granted to the Reseller, its Clients and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Services or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Services as expressly stated herein, all rights, title and interest in and to the Services and all software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Breach Secure Now and belong exclusively to Breach Secure Now. The Reseller is expressly prohibited from reverse engineering and/or duplicating Breach Secure Now Intellectual Property in function and/or appearance for the purpose of representing it as its own branded service, both during the Term of the Agreement and following termination of the Agreement. Breach Secure Now shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback received from the Reseller, its Clients or End-Users. Breach Secure Now, and the other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of Breach Secure Now (collectively, “Marks”), and the Reseller may only use applicable Marks in a manner permitted and approved by Breach Secure Now to identify the Reseller as a Subscriber; provided the Reseller does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Breach Secure Now or the Services. Reseller shall not register domain names containing Breach Secure Now trademarks.
2.3 Trade Secrets: Both Parties, during the Term of this Agreement, may have access to and become acquainted with various trade secrets of the other party, including but not limited to, customer lists, names and addresses of customers, sales and technical information and other confidential information as described in Section 2.4. All such trade secrets shall remain the exclusive property of the disclosing party and any use thereof by the other party shall be only for the purposes of and in connection with the transactions contemplated by this Agreement.
2.4 Confidentiality: “Confidential Information” includes, but not limited to, and without limitation, any and all pricing information, business plans, sales opportunities, customer lists, customer information, technical information, vendor information, information regarding the marketing or promoting of any product, business policies or practices, personnel, research, development or know-how, information that by its nature should be considered confidential, and information received from others that a party is obligated to treat as confidential. Breach Secure Now and Company agree that they will protect Confidential Information from unauthorized dissemination with the same degree of care that they use to protect their own like information, in no event using less than a reasonable degree of care. Both parties agree not to use Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Both parties will restrict the possession, knowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities (collectively, “Personnel”) who have a need-to-know Confidential Information. Each party will ensure that its Personnel comply with this Agreement.
2.5 Termination of License. In the event this Agreement is terminated for any reason whatsoever, including the expiration of its term, the license and right to use the Intellectual Property granted in this Section 2 shall immediately terminate and Reseller shall discontinue its use (if any), of the name, logotype, trademarks, slogans and other intellectual property and Confidential Information of Breach Secure Now and the Services, and Breach Secure Now shall discontinue its use (if any) of the name, logotype, trademarks, slogans and other intellectual property and Confidential Information of Reseller and any services of Reseller. In addition, Reseller shall return to Breach Secure Now or destroy all Breach Secure Now catalogs, literature and other materials in connection with Breach Secure Now or the Services then in the possession of Reseller.
Section 3. Term & Termination.
3.1 Term: This Agreement shall continue on a month-to-month basis beginning on the Effective Date. The Agreement will automatically renew for successive one-month terms unless either Party provides written notice of cancellation at least five (5) days before the end of the current monthly term. If either Party fails to provide the required 5-day notice, the Agreement shall automatically renew for an additional one-month term. All other terms and conditions of this Agreement remain in effect until the termination date.
3.2 Effective date: This Agreement shall be effective as of the sign up date (the “Effective Date”), All rights and obligations of the parties under this Agreement shall commence on and be enforceable as of the Effective Date, unless otherwise specified herein.
3.3 Early Contract Termination:
3.3.a. If Reseller terminates this Agreement during a monthly term without providing proper notice under Section 3.1, the Reseller shall remain responsible for payment of the full amount owed for the current monthly term.
3.3.b. If applicable, the remaining payment under Section 3.3.a shall be calculated based on the total value of the current monthly term minus any payments already made by the Reseller for that term. The total value shall be based on the current aggregate user count enrolled in the EBPP product on the date of termination.
3.4 Notice of Termination:
3.4.a. Reseller shall provide written notice of termination under Section 3.1 to Vendor clearly stating the intent to terminate.
3.4.b. The notice of termination described in 3.4.a shall include the reasons for early termination, the desired termination date, and any other relevant information.
3.4.c. Breach Secure Now shall acknowledge receipt of the termination notice and confirm the termination date.
3.5 In the event of a termination under this Section, Breach Secure Now shall collect any outstanding payment due for the current monthly term by charging the active credit card on the Reseller’s account.
Section 4. Pricing.
4.1 Pricing: Reseller agrees to pay Breach Secure Now for all Services purchased for resale to its customers in accordance with Breach Secure Now’s current standard pricing schedule. Pricing is based on active user counts and applicable subscription tiers
4.2 First Month Promotional Period: Reseller will receive the first month of the Enterprise BPP subscription at no charge, a $150 value.
4.3 Ongoing Monthly Charges: Beginning on the first billing date following the promotional month, Reseller will be charged monthly in advance based on the total aggregate number of active enrolled users as of the applicable billing date. Charges will automatically be billed to the credit card on file in accordance with Section 4.8 below.
4.4 Minimum commitment: Reseller agrees to maintain a minimum of fifty (50) active users per monthly billing cycle. Billing will not be reduced if the active user count falls below this minimum during any billing period.
4.5 Per User pricing: Applicable per-user pricing and tier details are available through Reseller’s Partner Success Manager (“PSM”) or within the Management Reporting Console (“MRC”). Pricing is determined based on total aggregate enrolled users across all Reseller clients.
4.6 Pricing adjustments: At the time of renewal Breach Secure Now reserves the right to adjust pricing. Any proposed adjustments to pricing shall be communicated to the Reseller no less than 60 days prior to the renewal date.
4.7 Taxes: Unless otherwise stated, Breach Secure Now’s charges do not include taxes, levies, duties, or similar governmental assessments (“Taxes”). Reseller is responsible for any applicable Taxes. Breach Secure Now does not charge any Taxes other than sales tax, which we may assess and collect when required by law. Reseller agrees to pay any such sales tax if invoiced.
4.8 Credit Card Payments:
4.8.a Payment information: Reseller agrees to maintain at all times a valid credit card on file. Breach Secure Now provides an interface for Reseller to add or change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card in advance on a periodic basis in accordance with the terms of the Agreement and for periodic Subscription Charges applicable to the Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Breach Secure Now and the Payment Agent to charge Your credit card to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
4.8.b Payment Failures: Breach Secure Now warrants that, in the event a credit card payment by Reseller is denied, Reseller will be notified of the payment failure and Reseller must resolve the issue before services are cancelled by Breach Secure Now. Failure to maintain a valid credit card is grounds for suspension. If failed payment results in early termination of services Reseller shall receive a final bill in accordance with section 3.5 of this agreement
Section 5. User Counts and Tier Upgrades & Downgrades.
5.1 User Count: User counts will be calculated based on the total aggregate users enrolled in the EBPP Product as of the Reseller’s current billing date each month. A detailed billing report will be included with the monthly invoice showing the number of enrolled clients and user count details for each client.
5.2 Tier threshold: Upon reaching or exceeding a tier threshold Reseller will automatically be upgraded to the next highest tier.
5.3 Tier Downgrades: Once a Reseller has enrolled in the Enterprise BPP product they are not eligible to subscribe to per client BPP’s
Section 6. Limitations.
6.1 Once the EBPP product is active a Reseller has the right to setup as many clients as they want. If a new client is not Fully Populated after thirty (30) days from the client creation date certain system limitations may apply.
6.2 Fully Populated: To be a Fully Populated client a Reseller must enroll all active client employees within the first thirty (30) days to maintain complete functionality of the service.
6.3 Non-Fully Populated: Clients that do not have the full employee list actively enrolled in the EBPP are only permitted on the platform for thirty (30) days from the client creation date and only the following services are available in that period.
6.3.a. Dark Web Breach Assessment (DWBA)
6.3.b. Baseline Employee Cybersecurity Assessment (BECA)
6.3.c. Send one (1) Phishing campaign
If a client is not Fully Populated in the first thirty (30) that client may be set as inactive and not eligible to be re-activated without Vendor’s permission.
6.4 Misuse of functionality: Any Misuse of functionality that does not fall into the appropriate use case will be considered a breach of contract and could result in cancellation of services.
Section 7. Responsibilities of Breach Secure Now.
Breach Secure Now shall have the following responsibilities:
7.1 Provide Reseller with sales and technical information regarding the Services as necessary, including support directly to employees and representatives of the Reseller, and indirectly Clients and Client End Users of Reseller for any issues escalated to Breach Secure Now by Reseller’s support staff, for Services that Reseller sells for Breach Secure Now.
7.2 Manage all payment issues between Reseller and Breach Secure Now.
Section 8. Responsibilities and Acknowledgements of Reseller.
Reseller’s duties and acknowledgements hereunder are as follows:
8.1 Reseller shall use its best efforts to promote the Services to customers.
8.2 Reseller shall advise Breach Secure Now promptly as to problems encountered with the Services and as to any resolutions arrived at for those problems.
8.2.a Reseller shall ensure its employees and representatives comply with this Agreement
8.2.b The parties shall collaborate in connection with promotional activities of the Services.
8.2.c Reseller also accepts and agrees to the following Services conditions and limitations Related to HIPAA Services:
HIPAA Compliance: Reseller acknowledges that the Breach Prevention Platform (BPP) does not provide a complete and effective framework for HIPAA compliance. In instances where HIPAA compliance is required, use of the HIPAA BPP, HIPAA Compliance, HIPAA Business Associate Compliance or HIPAA Secure Now! (collectively, the “HIPAA Services”) as provided by Breach Secure Now should be considered. Further, the HIPAA Services do not guarantee compliance with the HIPAA Security and Privacy Rules. The HIPAA Services provide education and tools to help implement the HIPAA Security and Privacy Rules. The HIPAA Security and Privacy policies and procedures provided are a foundation for implementing the Security and Privacy Rules. It is the responsibility of the user of the HIPAA Services to ensure that all employees comply with the policies and procedures. In addition, the HIPAA Security risk assessment identifies areas that the user needs to address to further protect electronic protected health information (ePHI, aka patient information). It is the user’s responsibility to act upon the findings of the risk assessment and implement the recommendations to further protect ePHI. It should also be acknowledged that the HIPAA Services do not constitute legal advice, and consultation with legal counsel to ensure a full legal interpretation of the law is recommended.
8.2.e Reseller also accepts and agrees to the following Services conditions and limitations Related to Dark Web Scans:
i. Dark Web Scans on client email domains and all associated email accounts should only be conducted to help increase awareness of the dangers of the Dark Web.
ii. the information obtained from a Dark Web Scan will not be used in any way that is harmful to any organization and/or individuals.
iii. the data breaches retrieved from a Dark Web Scan may not represent all data breaches and all accounts which have been compromised may not be included in the results of the scan.
iv. the information presented in the Dark Web Scan and the Dark Web Breach Assessment is for informational purposes only. Breach Secure Now IN NO EVENT SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS MATERIAL OR FOR ANY USE OF THIS MATERIAL.
v. Right to Modify. The Company acknowledges that Breach Secure Now may modify the features and functionality of the Services during the Subscription Term.
Section 9. Relationship of Reseller.
9.1 Independent Contractors. The parties hereto expressly understand and agree that the Reseller is an independent contractor in the performance of each and every part of this Agreement and is solely responsible for all of its employees, and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages and debts of any type whatsoever that may arise on account of Reseller’s activities, or those of its employees in the performance of this Agreement. Breach Secure Now is in no manner associated or otherwise connected with the actual performance of this Agreement on the part of Reseller, nor with Reseller’s employment of other persons, or incurring of other expenses. Reseller shall have no right, power, or authority to bind or obligate Breach Secure Now in any manner whatsoever or to affix its name or signature on behalf of Breach Secure Now unless expressly authorized to do so by Breach Secure Now in writing.
9.2 Approvals. Each Party shall obtain such authorizations, licenses, and other governmental or regulatory agency approvals as are required for its respective performance of this Agreement.
Section 10. Disclaimer; Limitation on Liability.
Disclaimer. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND AS AVAILABLE, WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED. BREACH SECURE NOW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SITE OR THE SERVICES. Neither Reseller nor Breach Secure Now nor anyone else involved in providing the Services under this Agreement will be liable to Breach Secure Now or Reseller or any third party for any claims or damages from the use of or inability to access the Services or for mistakes, omissions, loss of data, service interruptions, deletion of files, errors, defects, mis-deliveries, delays in operation or transmission or any failure of performance, whether or not attributable to acts of God, communications failure, destruction theft, terrorism, or unauthorized access to Breach Secure Now’s records, programs, servers or the Services. Breach Secure Now and Reseller shall not be liable for any losses or damages whatsoever resulting from any failure of the Internet or from any failure to provide the Services.
Limitation of Liability. The Parties expressly acknowledge that Breach Secure Now’s liability is specifically limited to amounts paid by Reseller for the previous three-month period from the date the cause of action arose, and for the Services component which prompted the cause of action. Except for liability arising out of Section 11, both parties hereby waive all rights of recovery of any damages, whether actual or special, punitive or consequential, that they may incur over and above said amounts, including, without limitation, damages for negligence, lost data, use, profits, income, savings, loss of or damage to property, personal injury, goodwill or any claims of third parties whatsoever with respect to the Site or the Services. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above exclusions may not apply to all parties; in such states liability is limited to the fullest extent permitted by law.
Section 11. Survival.
The following sections shall survive the termination of this Agreement: Sections 2 (Intellectual Property), 3 (Fees and Payment, except for termination for cause), 10 (Limitation on Liability), 12 (Non-Competition and Non-Solicitation) 13 (Indemnity), , Section 14. Assignment, Entire Agreement and Amendment,15 (Severability) and 16 (Notice).
Section 12. Non-Competition and Non-Solicitation.
As noted above, information about Reseller’s customers is Confidential Information and constitutes Reseller’s valuable trade secrets. Accordingly, Breach Secure Now agrees that Breach Secure Now will not, either directly or indirectly, separately or in association with others, interfere with, impair, disrupt or damage Reseller’s relationship with any of the customers procured by Reseller on behalf of Breach Secure Now by knowingly soliciting or encouraging others to solicit any of them for the purpose of diverting or taking away business from Reseller.
Additionally, the Parties acknowledge and recognize that each Party’s employees are a valuable resource and the loss of employees generally tends to interfere with, impair, disrupt or damage their respective business. Accordingly, each Party agrees that during the Term and for a period of one (1) year thereafter they will not separately or in association with others, solicit, directly or indirectly encourage or attempt to hire any of the other party’s employees.
Section 13. Indemnity.
Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnified Party”) from and against any action, litigation or claim against the Indemnified Party, its employees and agents: (a) arising out of or related to the negligence of the Indemnifying Party, its employees and agents, or (b) arising out of or related to acts of the Indemnifying Party, its employees or agents that are beyond the scope of or in breach of this Agreement, or (c) arising out of or related to any warranties or representations made by the Indemnifying Party, its employees or agents not authorized by the Indemnified Party, and the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party, its employees and agents from and against all costs and damages adjudged against the Indemnified Party, its employees and agents in any such action, litigation or claim as aforesaid; provided, however, that the Indemnified Party shall have notified the Indemnifying Party of any such action, litigation or claims against the Indemnified Party, its employees or agents. The Indemnifying Party agrees that if it fails to defend any such action, litigation or claim against the Indemnified Party, its employees and agents, after such notice, the Indemnified Party and its employees and agents may defend such action, litigation or claim and the Indemnifying Party agrees to reimburse the Indemnified Party its employees and agents for any resulting fees, expense, damages or settlement.
Section 14. Assignment, Entire Agreement and Amendment.
14.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement in connection with any merger or change of control of Breach Secure Now or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.2 This Agreement constitutes the entire agreement and supersedes any and all prior agreements between You and Breach Secure Now with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
14.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will post a notification on the Website of such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Breach Secure Now as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
Section 15. Severability.
If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall not be affected, impaired or invalidated in any way.
Section 16. Notice.
Except as otherwise provided in this Agreement, specifically Section 14.3, all communications, notices and demands of any kind which either party may be required or may desire to give the other party shall be in writing and delivered by personal service to the other party, or by overnight courier, or the electronic mail address provided for Your Account owner, each with confirmation of delivery. Notice shall be considered given when delivered in person, on the seventh day after being deposited in the United States mail or upon confirmation of the delivery of the facsimile or email. Notice to Breach Secure Now shall be sent to the physical address provided at the beginning of this agreement or to electronic mail address [email protected].
Section 17. Governing Law.
This Agreement will be governed and construed in accordance with the laws of the State of New Jersey without giving effect to principles of conflict of laws. Further, the venue for resolution of disputes under this Agreement will be in Morristown New Jersey, and the Parties consent to such jurisdiction.
Section 18. Duly Authorized Representative.
Anyone accepting this Agreement on behalf of an entity represents and warrants that he or she has the express authority to do so.
Section 19. Further Assurances.
Each party hereto agrees to execute, acknowledge, deliver, file and record such further certificates, amendments, instruments and documents, and to do all such other acts and things, as may be required by law or as may be necessary, advisable or convenient to carry out the intent and purpose of this Agreement.
Section 20. Counterparts.
This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Counterparts may be exchanged electronically via fax or email.
Section 21. Dispute Resolution; Arbitration.
If any dispute arises under this Agreement, the parties shall make a good faith effort to resolve the dispute before taking any action. The parties shall meet to discuss the dispute no later than thirty (30) days after either party gives written notice to the other party that such a dispute exists. Such meeting may be held telephonically if travel is impractical for either party. At such meeting, an officer of each of the parties who has authority to resolve the dispute shall be in attendance. No action, suit, arbitration or other proceeding may be commenced (other than the collection of money due on unpaid undisputed invoices and other than any injunctive relief expressly provided for in this Agreement) before the parties have met pursuant to this provision unless immediate injunctive relief is being sought, in which case the noted meeting shall take place at the earliest opportunity after such immediate injunctive relief is sought. All disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement shall be finally settled by arbitration in Morristown New Jersey in accordance with the commercial arbitration rules of the American Arbitration Association. The award rendered by the arbitrator(s) shall be final and binding upon the parties hereto. In the event of any arbitration proceedings hereunder, each party agrees to bear its own reasonable fees, costs and expenses in connection with such proceedings, provided that upon the conclusion of any such arbitration proceeding, in addition to any award granted by the arbitrator(s), the prevailing party shall have their reasonable attorney’s fees, costs and expenses reimbursed by the other party.