1. AGREEMENT.

    1. Your use of the VirPack Document Management and Delivery System and its associated products, and software (the “VirPack DMDS Platform”) is subject to the terms of a legal agreement between you and VirPack. “VirPack” means Innovative Workflow Engineering, Inc., d/b/a VirPack, a Delaware Corporation, with its principal place of business at 8300 Greensboro Drive, Suite 975, McLean, Virginia 22102. This document explains how the agreement is made up, and sets out the terms of this agreement.

    2. User access to the VirPack DMDS Platform is through username and password information provided by New Mexico Mortgage Finance Authority, ( the "Client"), a self-supporting quasi-governmental entity in the State of New Mexico with its principal place of business at 344 Fourth St. SW. Client has entered into a Software License and Services Agreement with VirPack (the “SLSA”).  User hereby acknowledges that it is a customer, agent, representative, employee or affiliate of Client and that its access is dependent upon the continuing relationship between VirPack and the Client.

    3. Definitions:

      1. "Hosted System" means a combination of hardware, software and networking elements that comprise an information technology system. The Hosted System consists of the right to use certain parts of a shared system that VirPack maintains for many customers.

      2. "Hosting Services" means VirPack’s provision for use by User of the Hosted System described in the SLSA between Client and VirPack.

      3. The VirPack DMDS Platform, Hosted System and Hosting Services together with their associated products, software and services shall be individually and collectively referred to herein as “Services”.

    4. Unless otherwise agreed in writing with VirPack, your agreement with VirPack will always include, at a minimum, the terms and conditions set out in this Agreement.

    5. This Agreement forms a legally binding agreement between you and VirPack in relation to your use of the Services. It is important that you take the time to read them carefully. This legal agreement is referred to below as the “Agreement”.

  2. ACCEPTING THE TERMS.

    1. In order to use the Services, you must first agree to this Agreement. You may not use the Services if you do not accept this Agreement.

    2. You can accept the Agreement by:

      1. Clicking to accept or agree to the Agreement, where this option is made available to you by VirPack in the user interface for any Service; or

      2. by actually using the Services. In this case, you understand and agree that VirPack will treat your use of the Services as acceptance of the Agreement from that point onwards.

    3. You may not use the Services and may not accept the Agreement if:

      1. you do not have capacity to form a binding contract with VirPack, or

      2. you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.

    4. Before you continue, you should print off or save a local copy of this Agreement for your records.

    5. Hereinafter you shall be referred to as “User”.

  3. USE OF THE SERVICES.

    1. User agrees to use the Services only for purposes that are permitted by:

      1. this Agreement;

      2. the SLSA;

      3. and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

    2. User agrees not to access (or attempt to access) any of the Services by any means other than:

      1. through the interface that is provided by VirPack; and

      2. the username and password information provided by Client to User.

  4. GENERAL SYSTEM REQUIREMENTS:

    1. User agrees to install and maintain at User cost, Anti-Virus software (with automated virus definition updates running daily) on all User workstations accessing the Services to scan and check for viruses of any electronic file, prior to such file being added to the Services.

  5. USER COVENANTS:

    1. User must use reasonable security precautions in connection with its use of the Services including rigorously protecting the confidentiality of the username and password which were provided to User and which are used by User to access the Services. User must comply with the laws applicable to its use of Services and with Section 9 - Acceptable Use Policy. User must cooperate with Client and VirPack in the reasonable investigation of service outages, security problems, and any suspected breach of the Agreement. User shall maintain up-to-date account permissions and other account information with Client.

    2. User is responsible for understanding the regulatory requirements applicable to User and for selecting and using the Services in a manner that complies with the applicable requirements.

    3. User shall immediately notify Client of any unauthorized access or activity or the dissemination of access usernames and/or passwords to unauthorized parties.  Upon request, User will promptly provide Client and VirPack with all available information and documentation relating to any such event.

  6. INTELLECTUAL PROPERTY RIGHTS

    1. VirPack will provide User with a non-exclusive license to the Services in the form of license agreement described in Section 8 herein.

    2. As between VirPack and User, all other rights in the Services, or in any other software, documentation, tools, systems, data, plans, specifications, drawings, designs, inventions, techniques, processes, technology, algorithms, improvements, developments and discoveries that VirPack may use, make, conceive, develop or reduce to practice, alone or jointly with others, in the course of their performance under this Agreement shall remain in and are hereby assigned to VirPack. This includes any and all patent, copyright, trade secret or other proprietary rights therein.

    3. This Agreement shall not be deemed, interpreted, or construed that User shall have any rights, privileges or title to any current or future products and services that VirPack currently owns or intends to develop outside of this Agreement. In the event that User decides to buy or license any such product(s), User shall acquire any rights, title or interest in such product(s) only under the purchase or license agreement provided with such product(s) at the time of such purchase or license.

    4. User may not copy any software provided by VirPack under this Agreement. User may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software provided by VirPack. User may not reverse engineer, decompile or disassemble any software or services VirPack provides for User’s use. 

    5. User agrees to refrain from adding or modifying content in the VirPack DMDS Platform during the daily maintenance and back up time period as defined in the scheduled service interruptions section (Section 14) of this Agreement.

  7. CONFIDENTIAL INFORMATION

    1. "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether by their agents, principals, employees, affiliates or representatives, and whether to the other Party's agents, principals, employees or representatives.  This includes, without limitation:  User’s login credentials, including username and password; all information transmitted to or from, or stored on, the Services (as defined in the Section 1.3.3 above), including Personally Identifiable Information (“PII”), (as defined in Section 7.2); all ideas, improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, but not limited to, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, training procedures, pricing, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, operating results, personnel information, customer lists, trade secrets, know-how, product design, capabilities, specifications and architectures, the identity of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other).

    2. " Personally Identifiable Information" or "PII" means: (i) a combination of any information that identifies an individual with that individual's sensitive and non-public financial, health or other data or attribute, such as a combination of the individual's name, address, or phone number with the individual's social security number or other government issued number, financial account number, date of birth, address, biometric data, mother's maiden name, or other personally identifiable information; (ii) any "non-public personal information" as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, §6809(4), and (iii) "protected health information" as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.

    3. Each Party agrees with respect to the Confidential Information received from the other Party that during the term of this Agreement, it: (a) will maintain such Confidential Information in the strictest confidence; (b) will not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such third party is subject to the binding effect of these restrictions; and (c) will not, directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than in performance of its obligations or rights under this Agreement. Confidential Information of the other Party may be provided to a Party's employees, agents or contractors only on a need-to-know basis, and prior to such provision, the Party will notify each employee, agent or contractors to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee, agent or contractor. For as long as a Party continues to possess or control the Confidential Information furnished by the other Party, and for so long as the Confidential Information remains unpublished, confidential and legally protectable as the intellectual property of the disclosing Party, except as otherwise specified herein, the receiving Party shall make no use of such Confidential Information whatsoever, notwithstanding the expiration of this Agreement. The Parties acknowledge their understanding that the expiration of this Agreement shall not be deemed to give either Party a right or license to use or disclose the Confidential Information of the other Party.

    4. The Confidential Information as defined in this Agreement shall not apply to any information (a) previously known to either Party free of any obligation to keep it confidential; (b) that has been or which becomes publicly known, through no wrongful act of either Party; (c) which is rightfully received from a third Party who is under no obligation of confidence to either Party; or (d) which is independently developed by the receiving Party as evidenced by documentation possessed by the Party claiming such independent development.

    5. Each Party recognizes and agrees that all Confidential Information shall remain the property of the disclosing Party, and that all copies of the same in written, graphic, or tangible form shall be returned to the disclosing Party upon the request by the discloser.  Notwithstanding the foregoing, the Party bearing the obligation to return such Confidential Information may provide to the disclosing Party written certification that said Confidential Information has been destroyed. The receiving Party will not be obligated to delete or destroy any Confidential Information that may be stored in an electronic backup.

    6. Each Party recognizes that it must comply with the provisions and requirements of the Gramm-Leach-Bliley Act of 1999, as set forth in 15 U.S.C. § 6801 et seq., and in 12 C.F.R. Part 40.  Each Party therefore agrees that it shall not make public any Personally Identifiable Information (PII) or "non-public personal information," as that term is defined in the Act and regulations, from either Party’s customers to which a Party may gain access pursuant to this Agreement.  Further, User   agrees to indemnify and hold VirPack harmless against any and all claims or charges for violations of the Gramm-Leach-Bliley Act which occur as a result of User’s negligence or willful conduct in disclosing in any way the non-public personal information of Client’s customers.

    7. User acknowledges that any violation of the confidentiality obligations in this Section 7 would cause irreparable injury to VirPack and that monetary damages are not sufficient to compensate for such harm. User acknowledges and agrees that VirPack has the right to seek to obtain an injunction without the necessity of posting bond to prevent the actual or threatened breach of this Section, and that this right is in addition to any other rights and remedies available to VirPack under law or in equity.

  8. VIRPACK END USER LICENSE AGREEMENT.

    1. PLEASE READ THIS VIRPACK END USER LICENSE AGREEMENT (this Section 8, the "EULA") CAREFULLY BEFORE USING THE SERVICES. THE SERVICES ARE PROVIDED BY INNOVATIVE WORKFLOW ENGINEERING, INC., D/B/A/ VIRPACK (“VIRPACK”) PURSUANT TO THIS AGREEMENT BY AND BETWEEN USER AND VIRPACK. IF USER HAS NOT PREVIOUSLY ENTERED INTO AN AGREEMENT WITH VIRPACK AND IS NOT CURRENTLY A PARTY TO AN AGREEMENT WITH VIRPACK, USER SHALL NOT INSTALL, ACCESS OR USE THE SERVICES.

    2. BY USING THE SERVICES, USER AGREES TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, USER SHALL NOT INSTALL, ACCESS OR USE THE SERVICES. The End User License is subject to the terms and conditions set forth herein.

    3. Ownership.  The Services and related user manuals (the “Documentation”) are owned by VirPack (the Services and Documentation are collectively referred to as the “Product”), including all proprietary rights therein. The Product is protected by U.S. and international copyright law. VirPack will retain all title to an interest in the Product. The Product is licensed, not sold, to User, and this EULA does not grant any ownership or other rights to the Product. VirPack reserves all rights not expressly and unambiguously granted to User. User understands that the Services contain confidential information of VirPack, and User agrees to use reasonable efforts to maintain the confidentiality of the Services and to prohibit any unauthorized use or disclosure.

    4. License. Subject to the terms and conditions of this EULA and the Agreement, VirPack grants User a limited, non-transferable, non-sublicensable, non-exclusive right to use the Services. User may copy the Documentation to be used for internal use only, as necessary to use the Services. User may not lease, sublicense, rent, transfer, or assign the Services or any portion thereof to any third party. User may not remove any copyright, trademark, or other intellectual property rights notices from the Product. User may not reverse engineer, decompile, disassemble, or in any way modify the Software or any portion thereof. User may not make any modifications to the Product. The breach of any term of this Section will be considered a material breach of the EULA.

    5. Restrictions. User shall not copy, modify, or create a derivative work of the Product or any portion thereof, or incorporate the Product into or with other software.

    6. Term. This EULA will become effective on the date User first accesses and uses the Services and will remain in force indefinitely, unless earlier terminated in accordance with this Agreement or the EULA. If User breaches any material term of the EULA or the Agreement, or Client fails to pay license fees as they become due, VirPack may immediately terminate User’s license to use the Services, including by disabling any online access, in addition to taking any other legal remedies VirPack deems necessary.  At any time, upon 90 days’ notice, VirPack will have the right to terminate this EULA if a new version of the VirPack DMDS Platform has been provided as a replacement. This EULA shall also automatically terminate if a court has determined that User breached any of the terms or conditions herein or in this Agreement.

    7. Waiver. The failure of VirPack to complain of any act or omission by User, no matter how long the same may continue, shall not be deemed to be a waiver by VirPack of any of its rights hereunder. No waiver by VirPack at any time, express or implied, of any breach of any provision of this EULA shall be deemed a waiver of breach of any other provision of this EULA or a consent to any subsequent breach of the same or any other provision.

    8. Right to Audit Compliance. VirPack will have the right, at any time, to conduct, or direct an independent accounting firm to conduct, during normal business hours, an audit of your relevant records to verify User’s compliance with the terms of this EULA. This provision does not limit VirPack’s right to monitor or to investigate any conduct VirPack believes may be a breach of the licensing terms or may be otherwise threatening to the integrity of VirPack’s Software, products or services.

    9. General.  This EULA, together with the Agreement, constitutes the entire statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this EULA.  In the event of a conflict between the terms of this EULA and this Agreement, the terms of this EULA shall control. If any term or provision of this EULA is determined to be invalid or unenforceable, it will not affect the validity of the remaining provisions of the EULA, which shall remain in full force according to its terms. No amendment to or modification or waiver of this EULA will be binding unless in writing and signed by VirPack. This EULA shall be construed and interpreted in accordance with the laws of the state of New Mexico. Client shall not remove or export from the United States or re-export from anywhere any part of the Software except in compliance with applicable export laws and regulations of the United States. Each Party is an independent contractor and is not an agent or employee of, and has no authority to bind, the other by contract or otherwise. Client may not assign this EULA without VirPack's prior written consent except to an entity, which purchases substantially all of its assets or voting control over User provided that User provides thirty (30) days written notification to VirPack. Notices to VirPack should be mailed to VirPack, Attention: President, 8300 Greensboro Drive, Suite 975, McLean, VA 22102.

  9. VIRPACK ACCEPTABLE USE POLICY (AUP). USER’S SERVICES MAY BE SUSPENDED OR TERMINATED FOR VIOLATION OF THIS AUP IN ACCORDANCE WITH THIS AGREEMENT AND SLSA BETWEEN CLIENT AND VIRPACK.

    1. Abuse.  User may not use VirPack's network or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:

      1. Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;

      2. Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;

      3. Interference with service to any user of VirPack services or other network (including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks);

      4. Use of an Internet account or computer without the owner's authorization;

      5. Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);

      6. Collecting or using information without the consent of the owner of the information;

      7. Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;

      8. Use of VirPack Services to distribute software that covertly gathers information about a user or covertly transmits information about the user;

      9. Use of VirPack Services for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft's "add/remove" tool); or

      10. Any conduct that is likely to result in retaliation against VirPack services or website, or VirPack’s employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).

    2. Bulk or Commercial Email.

      1. User must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, User’s bulk and commercial email must meet the following requirements:

        1. User’s intended recipients have given their consent to receive email from User via some affirmative means, such as an opt-in procedure;

        2. User’s procedures for seeking consent include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given;

        3. User retains evidence of each recipient's consent in a form that can be promptly produced on request, and User honors recipient's and VirPack's requests to produce consent evidence within 72 hours of receipt of the request.

        4. User has procedures in place that allow a recipient to revoke their consent - such as a link in the body of the email, or instructions to reply with the word "Remove" in the subject line; User honors revocations of consent within 48 hours, and User notifies recipients that the revocation of their consent will be implemented in 48 hours;

        5. User must post an email address for complaints in a conspicuous place on any website associated with the email and User must promptly respond to messages sent to that address;

        6. User must have a Privacy Policy posted for each domain associated with the mailing;

        7. User has the means to track anonymous complaints;

        8. User may not obscure the source of User’s email in any manner. User’s email must include the recipients email address in the body of the message or in the "TO" line of the email; and

        9. User must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.

      2. These policies apply to messages sent using User’s VirPack services, or to messages sent from any network by User or any person on User’s behalf that directly or indirectly refer the recipient to a site or an email address hosted via User’s VirPack service. In addition, User may not use a third party email service that does not practice similar procedures for all its customers. These requirements apply to distribution lists prepared by third parties to the same extent as if the list were created by User.

      3. VirPack may test and otherwise monitor User’s compliance with its requirements. VirPack may block the transmission of email that violates these provisions. VirPack may, at its discretion, require certain customers to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer can demonstrate that all of the requirements stated above will be met.

    3. Vulnerability Testing: User may not attempt to probe, scan, penetrate or test the vulnerability of a VirPack system or network or to breach VirPack's security or authentication measures, whether by passive or intrusive techniques, without VirPack's express written consent.

    4. Newsgroup, Chat Forums, Other Networks

      1. User must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which User participates, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

      2. User must comply with the rules of any other network User access or participate in using User’s VirPack services.

    5. Offensive Content

      1. User may not publish, transmit or store on or via VirPack's services, equipment or network any content or links to any content that VirPack reasonably believes:

        1. Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;

        2. Is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;

        3. Is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;

        4. Is defamatory or violates a person's privacy;

        5. Creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement;

        6. Improperly exposes trade secrets or other confidential or proprietary information of another person;

        7. Is intended to assist others in defeating technical copyright protections;

        8. Infringes on another person's copyright, trade or service mark, patent, or other property right;

        9. Promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;

        10. Is otherwise illegal or solicits conduct that is illegal under laws applicable to User or to VirPack; or

        11. Is otherwise malicious, fraudulent, or may result in retaliation against VirPack by offended viewers.

      2. Content "published or transmitted" via VirPack's services, equipment or network includes Web content, email, bulletin board postings, chat, and any other type of posting or transmission that relies on the Internet.

    6. Copyrighted Material:

      1. User may not use VirPack's network or Services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless:

        1. User has been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or

        2. User is otherwise permitted by established copyright law to copy the work in that manner.

      2. It is VirPack's policy to terminate in appropriate circumstances the services of customers who are repeat infringers.

    7. Other

      1. User agree that if the VirPack IP numbers assigned to User’s account are listed on an abuse database like Spamhaus, User will be in violation of this AUP, and VirPack may take reasonable action to protect its IP numbers, including suspension and/or termination of User’s service, regardless of whether the IP numbers were listed as a result of User’s actions.

      2. User agrees that VirPack may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.

      3. No credit will be available under Client’s SLSA for interruptions of service resulting from User AUP violations.

    8. VirPack may change its AUP to add or modify restrictions on our customer’s use of the Hosting Services, provided that the changes are reasonable and consistent with hosting industry norms. If VirPack makes a change to the AUP User will be notified and a revised version of the AUP will be sent electronically to User.  The revised AUP will become effective thirty (30) days following our written notice to User of the revision to the AUP.

  10. TERMINATION.

    1. VirPack may suspend or terminate Services and Hosting Services without liability if: (i) VirPack reasonably believes that the Services and Hosting Services are being used in violation of the Agreement and its associated agreements; (ii) User does not cooperate with VirPack’s reasonable investigation of any suspected violation of the Agreement and associated agreements; (iii) there is an attack on Client’s Hosted System or Client’s Hosted System is accessed or manipulated by a third party without Client’s consent, (iv) VirPack is required by law to suspend Client’s Hosting Services; (iv) Client discretion to terminate User’s access to the Services or (v) there is another event for which VirPack reasonably believes that the suspension of Hosting Services is necessary to protect the VirPack Hosting Services system or its other customers. VirPack is not obligated to provide User with advance notice of a suspension.

    2. VirPack may suspend or terminate Services and Hosting Services without liability to User if Client is in default under the Software License and Services Agreement entered into with VirPack or its associated agreements.

    3. VirPack may suspend or terminate Services and Hosting Services without liability if User, by act or omission, violated the VirPack Acceptable Use Policy (“AUP”) described in Section 10 herein.

  11. LIMITATION OF LIABILITY

    1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT OR OTHERWISE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION), HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING OUT OF THE SERVICES OR HOSTING SERVICES OR USE OF THE PRODUCT,  EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR THE SLSA BETWEEN CLIENT AND VIRPACK TO THE CONTRARY, NEITHER VIRPACK NOR ANY OF ITS EMPLOYEES, AGENTS, SUPPLIERS, OR AFFILIATES IN CONNECTION WITH THE SERVICES, THIS AGREEMENT, THE SLSA BETWEEN CLIENT AND VIRPACK, AND ANY ACT OR OMISSION RELATED TO THE SERVICES, THE SLSA BETWEEN CLIENT AND VIRPACK, OR THIS AGREEMENT, SHALL HAVE ANY LIABILITY TO USER UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF LAW, AND INFRINGEMENT).

    2. THE PARTIES ACKNOWLEDGE THAT VIRPACK HAS SET ITS PRICES AND ENTERED INTO THE SLSA WITH THE CLIENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

    3. VIRPACK IS NOT LIABLE TO USER FOR LOST DATA.

    4. VirPack is not responsible to User or any third party for unauthorized access to User data or the unauthorized use of the Services unless the unauthorized access or use results from VirPack’s failure to meet its security obligations as described herein.  User is responsible for the use of the Services by any employee of User, any person User authorizes to use the Services, any person to whom User has given access to the Services, and any person who gains access to User data or the Services as a result of User’s failure to use reasonable security precautions, even if such use was not authorized by User.

  12. INDEMNIFICATION

    1. By VirPack.

      1. VirPack will have no obligations under this Section 12 with respect to infringement arising from the Services or relating to (i) modifications to the VirPack DMDS Platform by anyone other than VirPack, (ii) product specifications requested by Client, or (iii) the use of the Services in combination with any product not developed by VirPack.

      2. If the Services or any part thereof is, or in VirPack's opinion is likely to be, held to constitute an infringing product, VirPack may at its expense and sole discretion either (a) procure the right for Client and User to continue using it, (b) replace or modify it so it is non-infringing, or (c) terminate this Agreement.

      3. The foregoing remedies constitute User's sole and exclusive remedies and VirPack's entire liability with respect to any claim of intellectual property infringement.

    2. By User.

      1. User shall indemnify and hold harmless VirPack and its employees and agents from and against any loss, claim, damage or liabilities (or actions in respect thereof that may be asserted by any third party) (including reasonable attorneys' fees) that may result from any third party claims arising out of or relating to any use or distribution by the User of any deliverable product, including claims arising out of the acts or omissions of User’s employees, agents or any other person to whom User has given access to the Services provided under this Agreement, and further including User’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by User, except to the extent any such claim (i) is finally determined to have resulted from gross negligence or willful misconduct of VirPack or (ii) is covered by the preceding indemnities.

    3. The foregoing indemnities shall be contingent upon (i) the indemnified Party giving prompt written notice to the other Party of any claim, demand or action for which indemnity is sought; and (ii) the indemnified Party fully cooperating in the defense or settlement of any such claim, demand or action, at the expense of the indemnifying Party. The indemnifying Party shall obtain the prior written agreement of the indemnified Party to any non-monetary settlement or proposal of settlement.

  13. LIMITED WARRANTY

    1. VIRPACK HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PARTICULAR PURPOSE OR OTHERWISE (INCLUDING TIME OF PERFORMANCE), RESPECTING SERVICES RENDERED PURSUANT TO THIS AGREEMENT. IN ADDITION, VIRPACK MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY SOFTWARE, PRODUCTS, HOSTING SERVICES OR SERVICES PROVIDED TO OR USED BY USER. IF PROVIDED BY VIRPACK, SUCH SOFTWARE, PRODUCTS, HOSTING SERVICES AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND ARE SUBJECT TO THE LICENSE AGREEMENTS PROVIDED BY THE THIRD PARTY VENDORS, IF ANY. VIRPACK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. VIRPACK DOES NOT AND CANNOT CONTROL THE FLOW OF DATA. SUCH FLOW DEPENDS ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ACCORDINGLY, VIRPACK DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. FURTHER, VIRPACK DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

  14. SCHEDULED SERVICE INTERRUPTIONS: VirPack reserves the right to conduct routine system backup, maintenance, software updates, equipment upgrades and other activities at any time from midnight to 4:00 a.m. (Central U.S.), and upon at least forty-eight (48) hours advance notice to the Client. User agrees to rely upon Client forwarding said notices to User. VirPack is under no obligation to User to provide such notice to User.

    1. To help ensure that the backups are complete and correct, User agrees to refrain from adding content to the VirPack Service during the scheduled service interruption time period described above.

  15. OWNERSHIP OF OTHER PROPERTY: User does not acquire any ownership interest in or right to possess the Services. User shall not have a right of physical access to the Hosted System. VirPack does not acquire any ownership interest in or right to the information User transmits to or from or stores on its hosted servers or other devices or media.

  16. PREDOMINANCE OF THE SLSA. Notwithstanding anything herein to the contrary: Nothing in this Agreement shall create any rights or benefit that accrue to Client that do not exist under the SLSA; and, VirPack shall not have any obligation or liability to Client that is in addition to or outside of VirPack’s obligations and liability to Client under the SLSA. If any of the terms contained in this Agreement which describe or state the covenants, rights, obligations or liabilities by and between Client and VirPack are in conflict with the terms of the SLSA then the terms of the SLSA control.

  17. GOVERNING LAW. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the state of New Mexico.

  18. INDEPENDENT CONTRACTORS. Each Party is an independent contractor and is not an agent or employee of, and has no authority to bind, the other by contract or otherwise.

  19. WAIVER. No waiver by any of the Parties hereto at any time, expressed or implied, of any breach of any provision of this Agreement shall be deemed a waiver of breach of any other provision of this Agreement or a consent to any subsequent breach of the same or any other provision. No acceptance of any partial payment shall constitute an accord or satisfaction but shall only be deemed a part payment on account.

  20. SEVERABILITY; HEADINGS. If any term or provision of this Agreement is determined to be invalid or unenforceable, the remainder of this Agreement will not be affected thereby. The section headings in this Agreement are solely for reference purposes.

  21. ASSIGNMENT. Neither this Agreement nor any rights hereunder shall be assignable by User. Any attempted assignment or other transfer in violation hereof shall be void and of no force or effect.

  22. UNFORESEEN CIRCUMSTANCES. None of the Parties hereto shall be deemed to be in violation of this Agreement if it is prevented from performing any of its obligations hereunder for reasons beyond its reasonable control, including but not limited to, any of the following:  acts of God, war, strikes, statutes, rules, regulations or interpretations of statutes and regulations to which the Parties are subject. Notwithstanding the foregoing, such circumstances shall not relieve either Party from any payment obligations hereunder.

  23. ARBITRATION.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, may be settled by arbitration in the county of the non-initiating Party's principal place of business, pursuant to the American Arbitration Association’s Commercial Arbitration Rules. The number of arbitrators shall be one and shall be mutually agreed upon by the effected Parties. In the event that both Parties cannot mutually agree upon an arbitrator within fourteen (14) days, the American Arbitration Association will be permitted to appoint an Arbitrator. In either event, an Arbitrator shall be appointed within forty-five (45) days following the commencement of arbitration. If possible, the arbitrator will be an expert in the field of computers and software development. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

  24. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between User and VirPack with respect to the subject matter hereof. Any prior agreements, promises, negotiations or representations, whether oral or written, not expressly set forth in this Agreement are of no force or effect.

  25. POWER AND AUTHORITY. Each Party represents to the other that it has all necessary power and authority to enter into and perform its obligations under this Agreement. The individuals executing this Agreement on behalf of each Party represent that they have authority to do so.

  26. SURVIVORSHIP.  The rights, obligations, covenants and liabilities established under Sections 6, 7, 11, 12, and 13 of this Agreement shall survive the termination of this Agreement.