VERSION 1.1 – LAST UPDATED FEBRUARY 17, 2010

READ THIS AGREEMENT CAREFULLY BEFORE USING ANY SECURELEMENT SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN SECURELEMENT AND YOU.

These Terms of Service form part of an agreement (the "Agreement") between SecurElement Infrastructure Solutions ("SecurElement"), a Pennsylvania Limited Liability Corporation and you. This Agreement governs provision of SecurElement's Cloud Services (the "Service") and is effective as of the moment you indicate agreement by submitting the signed paperwork.

In addition to these Terms of Service, this Agreement consists of the following, each of which is incorporated into this Agreement by this reference: SecurElement's service level agreement, posted at http://www.securelement.com/legal/sla/ (the "SLA"); SecurElement's acceptable use policy, posted at http://www.securelement.com/legal/aup/ (the "AUP"); and SecurElement's privacy policy, posted at http://www.securelement.com/legal/privacypolicy/ (the "Privacy Policy").

• The Services
• SecurElement shall provide the Services as defined in each new Service Provisioned under the account you have created in agreeing to this Agreement. SecurElement shall provide those Services for the period of time set forth in the Statement of Work ("SOW").
• While this Agreement is in effect, you may reproduce and use, solely for the purposes of your accessing and using the Services, any application program interface ("API") software and systems SecurElement may offer to you in connection with the Service. The license granted in the preceding sentence is only for you and your own use, and may not be sublicensed. Your rights in the API are merely a license which terminates immediately when this Agreement terminates, and SecurElement or its licensors retain all other interests in any APIs licensed to you under this Agreement.
• If your SOW includes provisions for SecurElement to provide you with third-party-licensed operating system(s) or application software, you are also agreeing to and become immediately subject to the terms of the applicable end-user-license agreement(s) for the applicable third-party-licensed operating system(s) and application software that is currently applicable. The most current versions of those license agreements can be provided upon request. SecurElement may amend the then-current license agreements by posting new versions as they are issued by the third-party licensors, and those new versions shall become applicable immediately.
• If your SOW includes provisions for SecurElement to provide you with third-party equipment, you are also agreeing to and become immediately subject to the terms of the applicable end-user agreement(s) for the applicable third-party product(s) that is currently applicable. The most current versions of those license agreements can be provided upon request. SecurElement may amend the then-current license agreements by posting new versions as they are issued by the third-party licensors, and those new versions shall become applicable immediately. You agree to use any equipment in an “acceptable” usage scenario and provide proper environmental conditions so as to not shorten the expected life-span or damage the equipment.
• Paying for Services
• You will pay for the Services, including any services fees, bandwidth fees, storage fees, and set-up fees, in the manner described in the applicable Statement of Work(s) and their related fee schedules. Unless specified differently on the SOW, all fees for Services are charged in arrears no less than monthly based on your actual usage of the Services and the applicable fee schedule(s) referenced in the SOW(s). In addition to monthly billing, SecurElement may charge all outstanding fees owed upon the closing of any particular SOW or the termination of your use of a particular cloud server, cloud storage instance, or other virtual services. SecurElement accepts payments only in U.S. dollars through check, credit/debit or ACH. Service fees and overage fees apply regardless of the cause of the Service usage or overage, even if caused by hacker activity or other third party actions, and it is your responsibility to secure your account and the use of your Services against any malicious activity.
• Your account must have a current and valid credit/debit card on file prior to your placing any SOW, and SecurElement may terminate any SOW, or the Services as a whole, or this Agreement, at any time you no longer have a current and valid credit/debit card on file with your account.
• SecurElement may, from time to time, seek prior authorization from your credit card provider in advance of providing services based on SecurElement’s reasonable estimates of fees, and such authorizations may cause your credit card limits to be lower at certain times even though SecurElement’s charges may not have been posted to your account.
• Unless we specify otherwise in the SOW, we may increase fees at any time on thirty (30) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty days from the day of our written notice of a fee increase.
• You must notify SecurElement of any billing dispute, providing details regarding the nature of the dispute and the amount, within fifteen (15) days of the date on the invoice in question, or you will be deemed to have waived your dispute.
• If any payments you have made to SecurElement are reversed or charged back based on your credit/debit card transaction, SecurElement may suspend all Services until you have made alternative payment arrangements satisfactory to SecurElement. Any reversed or charged back payments, until paid in full, shall bear interest at a rate of 1.5% per month from the reversal/chargeback date until paid. In addition, SecurElement may charge an additional chargeback fee of $20.00, as liquidated damages to compensate SecurElement for administrative expenses related to the reversal/chargeback.
• Term and Termination
• This Agreement will continue until terminated by either party giving notice to the other pursuant to the notice procedure specified below. Termination of this Agreement, or of any Services or Orders, shall be effective immediately upon notice. However, until specifically terminated by either party, this Agreement shall remain in effect perpetually, even when no outstanding Order is in effect, and you may open and close SOWs without maintaining continuous or contiguous SOWs while this Agreement is in effect.
• Upon termination of a SOW for any reason, all data stored through the Services under that SOW is immediately no longer accessible to you until terms of the cancellation for that SOW are met. Once the specific SOW cancellation clause is met, SecurElement will assist (at your expense) with releasing all electronic data to transportable devices for you to do with as you see fit. Once terminated, data is subject to immediate destruction and all equipment included may be removed from your site.
• If you commit any material breach of this Agreement, SecurElement may terminate any SOW(s), any Service(s), or this Agreement immediately upon notice to you. SecurElement is not required to refund any fees paid or prepaid after such termination.
• Acceptable Use
• You agree that you have read, understand, and will comply in full with the AUP (http://www.securelement.com/legal/aup/). You acknowledge that you are responsible for the actions of any users of your system provided through the Services, and that those users actions are considered to be your actions for purposes of the AUP.
• SecurElement may suspend Services in whole or in part in the event that SecurElement reasonably suspects an AUP violation, and that suspension does not limit SecurElement from, and is in addition to, any other remedy that may be available to it based on your violation of the AUP. SecurElement will make reasonable efforts to notify you after any such suspension, but does not warrant that it will do so successfully in all cases. SecurElement is not liable for any losses suffered by you or your users because of a Service suspension due to a suspected AUP violation.
• SecurElement has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. SecurElement may grant law enforcement agencies access to its equipment, including equipment used to provide the Service to you.
• Service Levels & Remedies
  
  SecurElement will not be liable for Service interruptions or any other Service failures except as specifically set forth in the SLA and in this Section 5. In the event of hardware failure: (i) SecurElement will make reasonable efforts to recover lost data, upon your request, but data-recovery is not guaranteed; and (ii) SecurElement will provide such credits as are required by the SLA (if any). In the event you are dissatisfied with the Service, your sole remedies are those listed in the SLA and in this Section 5, or termination of this Agreement or any applicable SOW.
• Maintenance & Security
• SecurElement may interrupt Service to perform maintenance on SecurElement equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. SecurElement will exercise reasonable efforts to inform you before, or as soon thereafter if not reasonable beforehand, interrupting Service and to repair the Service promptly.
  
  Scheduled Maintenance is in effect the 3rd Sunday of Every Month from 8 AM to Noon and during this time some or all of your systems may be inaccessible.
• You are responsible for maintaining security and for maintaining patches and disaster recovery systems, except to the extent SecurElement specifically accepts such responsibility by listing such service features in your SOW(s). You may keep a back-up copy of all data hosted by SecurElement, and accept all risks that come from your failure to maintain a backup. SecurElement will provide physical access to or copies of software, data, or content stored on SecurElement's systems upon request and at your expense. SecurElement is not required to provide network access (i) after any termination or suspension of your Service (until cancellation clause is met) or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by you, or other interruption of network access.
• SecurElement is not required to reimburse any expenses you incur for technology diagnosis or repair, including without limitation expenses for outside consultants.
• Private and Confidential Information
• SecurElement will adhere to the provisions of the Privacy Policy. Except as stated below, you should look to the Privacy Policy to understand how SecurElement protects your proprietary data as well as data you may have obligations to protect on behalf of third parties.
• If it has actual knowledge, SecurElement may choose to notify you of leaks or exposure of private data. SecurElement is not required to provide such notification, except to the extent required by law. You may not rely on SecurElement to monitor for leaks, breaches or exposure of private data via the Services.
• You must employ reasonable security precautions in your use of the Service, including without limitation, encryption of social security numbers, medical records, and information of similar sensitivity belonging to you or to your customers or users. SecurElement’s servers do not use encryption by default (except for backup data), and data stored on the SecurElement servers is unencrypted except to the extent you configure them to store as an encrypted system.
• "Confidential Information" refers to any information SecurElement provides to you in any form and marks "Confidential," and any information SecurElement discloses orally and identifies as "Confidential" on or before disclosure. However, Confidential Information does not include information that: (A) is in your possession at the time of original disclosure by SecurElement; (B) is independently developed by you without use of or reference to information provided by SecurElement; or (C) becomes known publicly, before or after disclosure, other than as a result of your improper action or inaction.
• You will not use Confidential Information for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by SecurElement, you will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in your possession or control. Without limiting the generality of the foregoing, you will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of your employees or contractors who do not need to know. You will promptly notify SecurElement in writing of any misuse or misappropriation of Confidential Information that comes to your attention and will cooperate with SecurElement in investigating any such misappropriation and in mitigating any damages caused. Notwithstanding the foregoing, you may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided, however, that you give SecurElement advanced notice reasonably sufficient to allow SecurElement to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Upon termination of this Agreement or upon SecurElement's written request, you will return all Confidential Information to SecurElement and certify, in writing, the destruction of any copies thereof.
• You agree that your breach of the provisions of Subsection 7.e might cause SecurElement irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, SecurElement will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
• Warranty Disclaimers & Limitations of Liability
• SecurElement does not warrant that the Service will be uninterrupted, error-free, or completely secure. You acknowledge that the Service is not intended for use in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SECURELEMENT DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
• EXCEPT AS DESCRIBED IN THE SLA, SECURELEMENT SHALL NOT BE LIABLE TO YOU FOR HARM CAUSED BY OR RELATED TO YOUR SERVICES OR INABILITY TO UTILIZE THE SERVICES. SECURELEMENT SHALL NOT BE LIABLE TO YOU FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF SECURELEMENT UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE SIX MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
• SecurElement does not control and has not thoroughly reviewed all the websites run by SecurElement's customers or linked to SecurElement's website. With the exception of its own website, SecurElement is not responsible or liable for the content or practices of any website, including without limitation websites linked to SecurElement's website and websites hosted by SecurElement but run by its customers.
• SecurElement's limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 8 and elsewhere in this Agreement, (collectively, the "Limitations") apply equally to SecurElement's officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. You acknowledge and agree that SecurElement has set its prices and entered into this Agreement in reliance upon the Limitations, and that the Limitations form an essential basis of the bargain between SecurElement and you. The Limitations survive and apply even if your remedies provided in this Agreement are found to have failed of their essential purpose.
• Indemnity
  
  You shall defend and indemnify SecurElement (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of your customers or users, or any other third party, arising out of or related to your use of, misuse of, or failure to use the Service, including without limitation: (a) alleged conduct by you that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to you, to one of your customers, or to other third parties); and (c) any action taken by SecurElement as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such obligation of yours includes payment of losses, expenses, damages, and costs, including without limitation attorneys' fees.
• Miscellaneous
• Title and intellectual property rights to the Service and all components thereof are owned by SecurElement and its licensors and suppliers. All hardware and Internet protocol addresses provided by SecurElement are licensed to you temporarily and remain SecurElement's sole and exclusive property. The logos, service marks, and trademarks (collectively, "Trademarks") displayed on SecurElement's website and through the Service, whether or not registered, belong to SecurElement and its licensors and suppliers. Nothing in this Agreement transfers to SecurElement any copyright in, trademark on, or other ownership interest in any of your data or content. However, SecurElement may include your name in any list of customers used for marketing or other purposes unless you give us notice you do not wish your name used for such purposes by sending an email with your instructions to support@securelement.com.
• You are responsible for maintaining the confidentiality of your usernames and passwords, accept full responsibility for any actions taken by a person using your usernames or passwords whether authorized by you or not, and you will not transfer or sell to any third party such usernames, passwords, or your access to the Service.
• The parties agree that the fees listed as liquidated damages in this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of SecurElement provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of SecurElement at law or in equity.
• All written communications to you will be deemed delivered if sent to the contact points provided to SecurElement at the time of order, or to such other contact points as you provide in writing. You will include a valid email address with such contact points. All written communications regarding legal notices to SecurElement must be mailed by certified mail or sent via a nationally-recognized carrier which provides proof of delivery (e.g., Federal Express or UPS) to SecurElement, 7 Great Valley Parkway, Suite 110 Malvern PA 19355, unless SecurElement notifies you in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through your account portal page.
• SecurElement may revise this Agreement, including the AUP, the SLA, and the Privacy Policy, from time to time by posting a new version on the SecurElement website. Revised terms will become effective thirty (30) days after posting thereof (the "Renewal Date"). You waive any right to notice of revised terms other than through the SecurElement website, and such waiver will remain in force even if SecurElement does provide notice by email or another medium. (Your continued use of the Service after any Renewal Date will confirm acceptance of revised terms.) Notwithstanding the foregoing, revisions to the AUP, SLA, or Privacy Policy will become effective upon posting thereof. This Agreement may not be revised or amended in any other way, except through a written contract executed by authorized representatives of both parties. SecurElement may provide notices via email, but no email exchange will amend this Agreement, even if such messages purport to do so.
• This agreement shall be governed by the laws of the State of Pennsylvania, without giving effect to its conflicts of law principles. For the purpose of resolving conflicts related to or arising out of this agreement, the parties expressly agree and consent to the exclusive jurisdiction of, and venue in, the federal and state courts of Pennsylvania.
• Pursuant to 47 U.S.C. Section 230(d), SecurElement hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching "parental control protection" or similar terms.
• You will not use the Service in any way that violates applicable laws or regulations. You represent and warrant that you are not on the United States Treasury Department's list of Specially Designated National and Blocked Persons and is not otherwise a person or entity subject to a legal rule that would prohibit SecurElement from providing the Service.
• No delay, failure, or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
• In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document, these Terms of Service will govern.
• You may not assign this Agreement or any of your rights or obligations hereunder without SecurElement's express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
• In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement.
• This Agreement, including those documents incorporated by reference, embodies the entire and exclusive agreement between the parties with respect to its subject matter, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject matter.