TrustMAPP End User License Agreement EULA

Updated: 10/19/2020

TrustMAPP® End User License Agreement (EULA)

PLEASE READ THIS TERMS OF THIS END USER LICENSE AGREEMENT (EULA) CAREFULLY BEFORE USING THE SERVICE (AS DEFINED BELOW). BY INDICATING ELECTRONIC CONSENT OR USING THE SERVICE, YOU AGREE TO ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE, CLICK THE BUTTON THAT INDICATES REFUSAL OF THESE TERMS AND/OR DISCONTINUE YOUR USE OF THE SERVICE. THIS AGREEMENT IS CONTINGENT UPON THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, DESCRIBED BELOW, TO RESOLVE ANY DISPUTES WITH SDS.

1. Introduction and Acceptance

Secure Digital Solutions, Inc. (hereafter, “Secure Digital Solutions”, “SDS”, “Us”, “Our” or “We”), owns and operates the TrustMAPP® TrustMAPP Security Performance Management (SPM) platform (herein, the “TrustMAPP” or “Service(s)”), managed and hosted in the United States and/or its territories. The Service is protected by copyright laws and treaties, as described in Section 10 below.

Secure Digital Solutions expressly conditions the use of the Service upon Your acceptance of the terms defined herein, and any additional contracts, terms, conditions, and policies, including SDS’ Privacy Statement, which We hereby incorporate by reference (collectively, the “Agreement”). AS A USER OF THE SERVICE (HEREIN, “YOU” OR “YOUR”), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SELECTING THE “I AGREE” OPTION WHEN YOU REGISTER FOR THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “I AGREE” OPTION OR USE THE SERVICE.

If You are entering into this Agreement for or on behalf of a sole proprietorship, partnership, limited liability company, corporation, association, non-profit, government agency, or any other legal entity that is organized or operated for the profit and/or benefit of its owners, shareholders, constituents, or related beneficiaries (“Organization”), the terms “You” and “Your” apply to both You and the Organization, as applicable.

2. Definitions

“Affiliate(s)” means an entity that directly or indirectly controls, is controlled by, or is under common Control with the subject entity. For purposes of this definition, “Control” means direct or indirect ownership or control of more than fifty-percent (50%) of the voting interests of the subject entity.

“Agreement” means this End User License Agreement (EULA).

“Beta” means uses of TrustMAPP that are not generally available to all customers.

“Data” means content submitted by or for You to TrustMAPP or collected and processed by or for You using the Service. For purposes of this Agreement, “Data” includes Personal Data submitted by or for You to TrustMAPP or collected and processed by or for You using the Service.

“Documentation” means Our online user guides, and associated documentation and training materials, as updated from time-to-time.

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm to TrustMAPP, including, for example, viruses, worms, logic bombs and Trojan horses.

“Master Software Services Agreement” means a binding agreement between SDS and Your Organization, as applicable.

“Order Form” means an ordering document specifying TrustMAPP to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. An Order Form may include ancillary Services in support of your access or use of TrustMAPP.

“Personal Data” means Data relating to an identified or identifiable natural person.

“Privacy Statement” means a public-facing notice of SDS’ privacy practices located at www.trustmapp.com/privacy-statement.

“Service Period” means the period of time allotted to You to use TrustMAPP and receive Services in support of Your use of TrustMAPP. Your Organization and SDS define the Service Period in a fully-executed Master Software Services Agreement, where applicable.

“Service(s)” means the TrustMAPP Security Performance Management (SPM) platform used by You and/or Your Organization, and made available online by Us, as described in this Agreement. Services may also include ancillary services in support of your access or use of TrustMAPP.

“User” means an natural person who is duly authorized by Your Organization to use TrustMAPP, and to whom You (or We, at Your request) have provided access to TrustMAPP. For example, users may include You, Your employees, consultants, contractors, clients, agents, and third-parties with whom You transact business.

“We”, “Us”, “Our”, “SDS” or “Secure Digital Solutions” means Secure Digital Solutions, Inc., a Delaware corporation, headquartered at 5353 Gamble Drive, Suite 300, Saint Louis Park, Minnesota 55416, USA.

“You” or “Your” means You, the User of TrustMAPP and/or the Organization for which You are accepting this Agreement. For the sake of clarity, the right to use the Service is specific to such Organization User(s) of said Organization.

“Your Data” means electronic data and information submitted by or for You to TrustMAPP or collected and processed by or for You using the Service.

3. Your License

Conditional upon Your compliance with this Agreement, SDS grants to You a limited, revocable, non-exclusive, non-assignable, non-sublicensable right use the Service, as it is intended to be used during the Service Period, and in accordance with this Agreement and applicable law. We grant to You no other rights, implied or otherwise.

4. Our Responsibilities

5.1. Provision of the Service. We will make the Service available to You pursuant to this Agreement and applicable Order Form(s) and a Master Software Services Agreement (where applicable), provide Our standard support for the Service to You at no additional charge, or upgraded support if Your Organization pays us an additional fee (in accordance with the different service levels We may provide), and use commercially reasonable efforts to make TrustMAPP available twenty-four (24) hours a day, seven (7) days a week, except for:

(a) Planned downtime (but We will try to give You at least eight (8) hours electronic notice and to schedule this downtime during the weekend hours, i.e. 5:00 p.m. Friday to 8:00 a.m. Monday, Central Standard time); and

(b) Any unavailability caused by circumstances beyond Our reasonable control, including without limitation act of nature, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider (ISP) failure or delay, supporting software failures, act of government, or denial-of-service attack.

You acknowledge that We may, from time-to-time at Our sole discretion, issue updates or upgrades, or other amendments, to the Service and automatically update or upgrade the version of the Service that You are using on Your hardware device. You consent to such automatic updating or upgrading on Your hardware device, and agree that this Agreement will apply to all such updates, upgrades or amendments, unless such upgrade, update or amendment is accompanied by a separate license in which case the terms of that license will govern. You acknowledge and agree that We shall have no liability to You arising out of any unavailability of the Service.

5.2. Our Policies. We may maintain and publish policies regarding Our Service levels (i.e. up-time), data protection, and usage and other subject matter. We may occasionally modify and update these policies and, when We do, We will prominently post the new policies in the Service and/or email You a copy. Once published by Us, the updated policy will be effective and become Our policy relative to its subject matter, replacing and superseding the old policy. These policies, as updated from time-to-time, are hereby incorporated and form part of this Agreement. It is Your responsibility to stay current with all Our policies.

5.3. Compliance with the Terms. Our obligation to provide the Service, and Your rights to use the Service, are subject to and conditioned on Your compliance with all of the terms and conditions of this Agreement, including any terms in associated Order Form(s), a Master Software Services Agreement (where applicable), and any of Our Policies.

5. Use of Service

6.1. License Options. We offer the Service in several license types to meet the needs of Our customers. The license type applicable to You, and the features of such license type, are set forth in Order Form(s) and a Master Software Services Agreement (where applicable). In the event that the Order Form and/or a Master Software Services Agreement provide for a specific number of Users, Your license to use the Service is limited to the specified number of Users.

6.2. Trial License. If You wish to evaluate the Service prior to purchasing a license, We may grant You a non-exclusive, non-transferable, non-assignable, non-sublicenseable, limited-use license (“Trial License”) to access and/or use TrustMAPP. You agree that You will not put TrustMAPP into productive use and will not include it as part of Your Organization’s business processes in any manner. During the limited term of a Trial License for TrustMAPP, You are authorized to access and/or use TrustMAPP only as strictly necessary to support an evaluation of the Service.

6.3. Beta Version. From time-to-time, We may offer a Beta version of TrustMAPP. You acknowledge that the Beta version may be an untested, non-functional, and/or partly functional version of TrustMAPP. If You elect to use the Beta, You do so at Your own risk. We do not warrant that the Beta features will be provided with due care. You will not rely upon the functionality of the Beta features for any purpose whatsoever.

The Beta features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta features. BETA SERVICES, WHERE OFFERED, ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

6.4. Your Responsibilities. Among any applicable statutes under international, federal, or state laws and regulations, You will also:

(a) Be responsible for Your compliance with this Agreement

(b) Be responsible for the accuracy, quality, and legality of Your Data and the means by which You acquired Your Data and disclosed Your Data to Us

(c) Prevent unauthorized access to or use of TrustMAPP, and notify Us promptly of any such unauthorized access or use

(d) Use TrustMAPP only in accordance with this Agreement and associated User Documentation, applicable laws, and government regulations; and

(e) Comply with the terms with which You use the Service.

You are fully responsible for Your Data, including without limitation for complying with all laws applicable to Your Data. You acknowledge and agree that all Your Data is at Your sole responsibility and risk.

You shall assume sole responsibility for:

(a) Your use of TrustMAPP and the results You thereby intend to achieve

(b) the implementation of correction suggestions and any other suggestions or recommendations provided by the Service

(c) the completeness, accuracy, consistency and quality of Your Data and all other information which originates from You

(d) compliance with any third-party property rights or copyrights and privacy rights or any other third-party rights with regard to Your Data and its transfer to Us; and

(e) the infrastructure, software, and functional capability of the Internet access used by You.

6.5. Usage Restrictions. As a condition of using the Service, and the license granted to You herein, You will not:

(a) make the Service available to, or use the Service for the benefit of, anyone other than You and/or Your Organization

(b) use the Service to store or transmit infringing, libelous, hateful, sexually explicit, or otherwise unlawful or tortious material, or to access, transmit or store material in violation of individuals’ privacy rights

(c) share accounts or otherwise attempt to exceed the maximum number of allowable users relative to Your chosen license

(d) use the Service to store, transmit or otherwise propagate malicious software code (i.e. viruses, worms, Trojans)

(e) interfere with or disrupt the integrity or performance of Service or Data contained therein

(f) attempt to gain unauthorized access to the Service or its related systems or networks

(g) permit direct or indirect access to or use of the Service in a way that circumvents the usage limits defined by Your license

(h) copy the Service or any part, feature, function, or user interface thereof, or create derivative works of the Service or any part, feature, function, or user interface thereof

(i) frame or mirror any part of the Service in another web site, other than framing on Your own intranet(s), extranet(s) or otherwise for Your own internal business purposes or as permitted in this Agreement

(j) modify, translate, decompile, bootleg, disassemble, or extract the inner workings of any software constituting part of the Service, or otherwise attempt to discover the source code of any such software

(k) copy, for any reason, the look-and-feel or functionality of TrustMAPP

(l) access TrustMAPP for purposes of building a competitive product or service, or reverse engineer TrustMAPP (to the extent such restriction is permitted by law), or;

(m) use or launch any automated system, including without limitation, robots, web crawlers, offline readers, or similar systems that access TrustMAPP in a manner that sends more request messages to Our servers than a human can reasonably produce in the same period of time by using a conventional Web browser.

You acknowledge and agree that We may immediately suspend and/or terminate Your license to use the Service if We find You in violation of this Section.

6. Account Registration

You must register for an account with us (hereafter, “Account”) to use TrustMAPP. You are fully responsible for all activity that occurs under Your Account, including for any actions taken by persons to whom You have granted access to Your Account. We reserve the right to change the Account type, suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the Account registration requirements.

7. Ownership of Data

Secure Digital Solutions claims no intellectual property rights to the Data You add to or create in TrustMAPP. This Agreement does not grant us any licenses or rights to Your content, or other data except for the limited rights needed for us to provide the Service to You.

You agree that SDS may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that may be gathered periodically to facilitate the provision of Service updates, support and other services to You. Further, SDS, or a third-party vendor on SDS’ behalf, may collect information (i.e., metadata) from Your device to measure use and effectiveness of the Service. For example, SDS may measure the stability of the Service, Your interaction with the Service, and activity within the Service to enhance the user experience based on data obtained. SDS may share technical data and related information with selected third parties that support the Service.

You further agree that SDS may collect and use certain de-identified data, such as Your maturity score, Your industry sector, the size of Your Organization, and related data for purposes of aggregating results and sharing said results with users of TrustMAPP. The purpose for collecting and using such de-identified data enables SDS to display comparisons of aggregated information about the maturity of organizations of a given size and/or within a given industry sector.

8. Responsibility for Your Data

When You use the Service, You may add, create, and share proprietary and non-proprietary information (collectively, Your “Data”), and Personal Data, as defined by SDS’ Privacy Statement. You are fully responsible for ensuring that Your Data and Personal Data complies with all applicable laws and regulations. You acknowledge and agree that the Data and Personal Data You add, create, and share while using the Service is Your sole responsibility and risk.

9. Submission of Comments and Ideas

You may submit comments or ideas about the Service (“Ideas”). By submitting Ideas, You agree that Your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality, or other obligation, and that We are free to use Your Ideas without any additional compensation to You, and/or to disclose Your Ideas on a non-confidential basis or otherwise to anyone. Specifically, SDS shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, Ideas, recommendations, or other feedback provided by You, including Your users or employees, relating to the features, functions, and operation of TrustMAPP.

10. Our Intellectual Property

Secure Digital Solutions, Inc. owns the Intellectual Property Rights to the TrustMAPP® trademark and logo and TrustMAPP Security Performance Management (SPM) platform. TrustMAPP is protected by copyright laws and treaties, as well as laws and treaties relating to other forms of intellectual property, including, without limitation, any files, images, photographs, animations, video, audio, music, and text incorporated into TrustMAPP and associated Services. Unauthorized use, duplication, publication and distribution of all or any portion of TrustMAPP and/or its associated Services is expressly prohibited and will be prosecuted to the maximum extent provided by law. You acknowledge that, except for the limited license granted hereunder, You have no rights in or to the Service, or any derivatives therefrom. The TrustMAPP brand and the names or logos associated with the Service are trademarks of SDS or third parties, and no right or license is granted to You to use them. All other intellectual property rights, title, and interest, except those set forth herein, are expressly restricted and retained by SDS, its affiliates and subsidiaries.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.

11. Support

As part of providing the Service to You, We provide Standard Support to You at no additional charge. For purposes of this Agreement, “Standard Support” is defined in Your Organization’s Master Software Services Agreement and/or in an applicable Order Form.

12. Software Updates

As is customary with most cloud-based software providers, We may periodically deploy automated software updates for TrustMAPP. Typically, such updates occur without user intervention, during non-business hours. When We release an update to TrustMAPP, We will make good faith efforts to make Our users aware this event. By using the Service, You acknowledge that this Agreement remains in force following any such updates to the Service.

13. Mobile Device and Carrier Compatibility

We do not warrant that the Service will be compatible with Your mobile device or carrier. Your use of the Service on Your mobile device may be subject to the terms of Your agreements with Your mobile device manufacturer and/or Your carrier.

14. Third-Party Applications and Content

As part of the Service, We may give You the option to use certain third-party applications to enhance and expand the usability and functionality of the Service. These third-party applications may include document storage services and other value-added services. You may also use third-party content (such as images or files) when using the Service. Such third-party applications and content are subject to their own license terms and intellectual property rights.

YOU AGREE TO REVIEW AND COMPLY WITH THE LICENSE TERMS APPLICABLE TO ANY THIRD-PARTY APPLICATION OR INTELLECTUAL PROPERTY RIGHTS AFFORDED TO THE CONTENT YOU USE WITH THE SERVICE. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIM ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

15. Security of Account Credentials

To access to the Service, You must use a unique identifier (ID), password, and, when applicable, a third factor (such as a one-time code sent Your email account or mobile device). We may use a third-party user identity and authentication service to enable this functionality. We may also use a third-party service to enable multi-factor authentication for users of TrustMAPP.

You are entirely responsible for maintaining the confidentiality and security of Your unique User ID, password, and the email account and/or mobile phone number You provide SDS for multi-factor authentication. You agree to notify SDS immediately if You suspect unauthorized use of Your account or password.

16. Security of Confidential Information

Secure Digital Solutions values Your trust and confidence in Our Service. As such, We consider Your Data to be “Confidential,” and We will treat Your Data and Personal Data as such when You use the Service. We will not disclose Your Data and/or Personal Data to third-parties under any conditions but those outlined in Our Privacy Statement and Section 17 of this Agreement.

17. Compelled Disclosure

Pursuant to Our Privacy Statement, SDS may disclose Your Data and Personal Data when compelled by law to do so. When legally permissible and where feasible, We may provide You prior notice of the compelled disclosure.

18. Our Data Security Practices

We constantly strive to align Our data security practices with industry standards for processing Your Data and Personal Data. To prevent unauthorized access, maintain data accuracy, and ensure the correct use of Your Data and Personal Data, SDS implements administrative, physical, and technical measures to safeguard and secure the Data and Personal Data We collect via the Service. We utilize industry-accepted encryption technologies and strengths to reduce the risk that others can view information passing between Our Service and Your browser.

Since the Internet is not a completely secure environment, We cannot ensure or warrant the security of any Data or Personal Data You transmit to us. We offer no guarantees that Your Data or Personal Data cannot or will not be accessed, disclosed, altered, or destroyed by a breach of any of Our administrative, physical, or technical measures.

19. U.S. Federal Government Users

If You are acquiring the Service on behalf of any unit or agency of the U.S. federal government, the following shall apply: use, duplication, or disclosure of TrustMAPP is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 (June 1987), if applicable, unless being provided to the U.S. Department of Defense. If You are acquiring the Service on behalf of the Department of Defense, use, duplication, or disclosure of the Service is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (October 1988), if applicable. The Service may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall continue to apply, but only to the extent that such terms and conditions are consistent with the rights provided to You under the provisions of the FAR and DFARS, as applicable to the particular procuring agency and procurement transaction.

20. International Use

Although TrustMAPP may be accessible worldwide, We make no representation that the Service or related materials are appropriate or available for use in locations outside the United States or from territories where the content is illegal or otherwise prohibited. If You choose to access the Service from other locations, You do so on Your own initiative and You are responsible for compliance with local laws, if and to the extent local laws are applicable. Any offer and/or information made in connection with the Service and pursuant to this Section is void where prohibited.

21. Export Controls

The Service may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State. You warrant that You are not located in Cuba, Iran, North Korea, Sudan, or Syria; and are not a denied party as specified in the regulations listed above.

You agree to comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, You agree that You must not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from SDS under this Agreement to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination, cancellation, or transfer of the Agreement.

22. Anti-Corruption

You represent and warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Us of same.

23. High-Risk Application Disclaimer

Secure Digital Solutions does not design or intend the Service for use in or for the purposes of hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Service could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.

24. Your Representations and Warranties

You represent and warrant to us that:

  • You are at least eighteen (18) years of age
  • You are eligible and duly authorized by Your Organization to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement, whether individually or as a representative of an Organization
  • any information You provide in connection with the Service, including Your Organization name, title, and contact information, accurately and truthfully represents Your Organization and/or personal identity under which You and/or Your Organization sell goods and services
  • You and all transactions initiated by You will comply with all international, federal, state, and local laws, rules, and regulations applicable to You and/or Your Organization
  • You will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner that interferes with the operation of the Service; and
  • Your use of the Service complies this Agreement.

25. No Warranties

THE SERVICE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, SDS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

SECURE DIGITAL SOLUTIONS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

SECURE DIGITAL SOLUTIONS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY.

26. Dispute Resolution

Disputes arising any claim, controversy, or dispute between You and SDS, its processors, suppliers, or licensors (or their respective Affiliates, agents, directors, clients, or employees), including any claims relating in any way to this Agreement, the Service, or any other aspect of Our relationship (“Disputes”) will be governed by Your Organization’s Master Services Software Agreement.

27. Changes or Amendments

Secure Digital Solutions may change or amend the terms defined in this Agreement. If We make material changes, We will notify You, either through the user interface, in an email notification, or through other reasonable means prior to making such changes. Your use of the Service after the date such changes become effective will constitute consent to the changed terms. If You do not agree to the changes, You must immediately stop using the Service. Otherwise, any updated terms will apply to You.

28. Severability and Waiver

If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.

Any failure by SDS or any third-party beneficiary to enforce this Agreement or any provision thereof shall not waive SDS’ or the applicable third-party beneficiary’s right to do so.