By purchasing a NYS DFS Checkup™ from Assured Enterprises, you are agreeing to be bound by these Term and Conditions. Please read them carefully.
These Terms and Conditions are part of the agreement you enter into when you purchase a NYS DFS Checkup™. They, together with the information related to your purchase of the NYS DFS Checkup™ appearing on or provided by you through the portion of Our website related to the NYS DFS Checkup™ (the “Website”) are a legally binding agreement (the “Agreement”) between You, as the purchaser of the NYS DFS Checkup™, and Us, Assured Enterprises, Inc.
Below are definitions for some of the terms used in these Terms and Conditions. Additional terms are defined below.
Log-In Credentials means the credentials You create in connection with Your purchase of a NYS DFS Checkup™. The Log-In Credentials permit You to access a secure online environment in which You will complete the Questionnaire.
New York Regulations means 23 NYCRR Part 500 as in effect as of March 1, 2017.
Purchase Price means the price of Your NYS DFS Checkup™.
Questionnaire means the online questionnaire You must complete as part of your NYS DFS Checkup™.
Party or Parties means each of the parties included in the definition of “We” and “You” and, collectively, both such parties.
We, Us or Our means Assured Enterprises, Inc. and its affiliates and permitted assignees.
You or Your means the legal entity for which you are accepting this Agreement and its affiliates and permitted assignees.
2.1 Price. The Purchase Price for Your NYS DFS Checkup™ is the applicable price listed on the Website. It covers Our delivery to You of the Deliverables associated with the NYS DFS Checkup™. Once paid, the Purchase Price is nonrefundable.
2.2 Payment. Payment in full is due at the time You purchase the NYS DFS Checkup™ and may be made by check, credit card, wire transfer or ACH. Payment will be deemed made when We received cleared funds.
3.1 Deliverables. No later than ten (10) days following the day you complete and submit your Questionnaire, we will provide you with a written report containing recommendations as to the next steps for compliance with the New York Regulations (the “Deliverables”).
3.2 Limitations on Our Obligations. You acknowledge that, in the course of Our performance under this Agreement We may identify deficiencies in Your compliance with law or regulation that require correction, that we do not provide legal advice or services, that no communications from Us should be deemed, construed as or constitute legal advice and that You are ultimately responsible for retaining legal counsel to provide You with legal advice, should you desire such advice. In addition, no Deliverables or other information prepared by Us should be deemed to be a legal opinion and no such Deliverables or information may be relied upon as proof, evidence, guarantee or assurance as to Your legal or regulatory compliance.
You will complete the Questionnaire in full, in a thorough and accurate manner. You understand and acknowledge that the accuracy of the NYS DFS Checkup™ is directly related to the accuracy of the information that You provide to Us in the Questionnaire and otherwise.
5.1 Your Proprietary Rights. You will retain all right, title and interest in and to any data You provide to Us and/or data belonging to You and used by Us in connection with performance of the NYS DFS Checkup™, all intellectual property belonging to You and made available to Us in the course of such performance (collectively, “Your Materials”). You grant Us a limited, non-exclusive license to use Your Materials solely for the purposes contemplated by this Agreement.
5.2 Our Proprietary Rights.
(a) We are the owner of, and will retain, all right, title and interest, in and to all software, equipment and documentation used or created in connection with Our performance under this Agreement (“Our Materials”). We retain all right, title and interest in and to any written summaries, reports, analyses and findings or other information or documentation prepared exclusively for you in connection with the NYS DFS Checkup™ (any “Report”). We grant You a limited, non-exclusive license to use any Report or portion thereof solely in connection with and for the purposes of the NYS DFS Checkup™. We reserve all rights not expressly granted herein.
(b) Our Materials, including the Questionnaire, and all related documentation, are protected by copyright and title to Our Materials is retained by Us. You may not copy, transfer or otherwise use Our Materials, in whole or part, except as expressly permitted in this Agreement. You must reproduce and maintain the copyright notice on any authorized copy you make or use of any of the Questionnaire, the Findings or any other of Our Materials. You agree to notify and inform your employees or agents having access to any of Our Materials of Your limitations, duties and obligations regarding Our Materials.
5.3 No Third-Party Reliance. The provision by You of any information contained in any Report to any third party will not entitle such third party to rely on such information in any manner or for any purpose, We specifically disclaim all liability for any damages whatsoever arising from or related to reliance by any third party on any information contained in any Report.
6.1 Limited Warranty. We warrant that our Services will be performed by qualified personnel in accordance with current standard industry practices for similar services.
6.2 Limitations on Outcomes. We cannot and do not guarantee the outcome of our assessment or methods. We cannot and do not guarantee that any weakness, noncompliance issue or vulnerability will be discovered if evidence of such is not encountered during the NYS DFS Checkup™. You acknowledge and accept that limitations and inherent risks exist in approaches used by Us and that You will have no recourse against Us in connection therewith.
6.3 No Guarantee of Security. You acknowledge that the NYS DFS Checkup™ does not constitute a guarantee or assurance that Your information technology and related systems are or will be in compliance with the Regulations. Any Report speaks only as of its date and represents Our professional opinion as the steps necessary to achieve compliance with the Regulations. We are not responsible for updating any Report after its date.
6.4 Limitation of Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES PERFORMED BY US HEREUNDER, REGARDLESS OF WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE. NEITHER YOU NOR WE WILL HAVE LIABILITY, WHETHER DIRECT OR INDIRECT, FOR (A) LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; (B) LOSS OF CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF YOUR TARGET, SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (C) LOSS OF BUSINESS OPPORTUNITY; OR (D) BUSINESS INTERRUPTION OR DOWNTIME.
6.5 Exclusive Remedy. Our entire liability and Your exclusive remedy for any reason and for any cause of action whatsoever in connection with this Agreement will be, at Our option, either (a) return of the Purchase Price You actually paid for the NYS DFS Checkup™, net of any out-of-pocket expenses We actually incurred while our performance or (b) re-performance of the NYS DFS Checkup™, or relevant portion thereof.
6.6 Limitation of Liability. Assured’s aggregate liability for any reason and for any cause of action whatsoever in connection with this Agreement shall be limited to THE PURCHASE PRICE FOR THE NYS DFS CheckupTM PURCHASED.
The term of this Agreement commences on the date We accept Your payment of the Purchase Price and continues until the earlier of (a) the date on which we delivery the Deliverables or (b) two (2) years following commencement of the Term.
Except as otherwise explicitly provided in this Agreement, all communications required, permitted or contemplated by, or otherwise given in connection with, this Agreement or a NYS DFS Checkup™ shall be given in writing, by personal delivery, by registered or certified mail, return receipt requested, postage prepaid, by reputable overnight courier service or by e-mail or other electronic transmission. Any such communication shall be deemed to have been duly given when personally delivered or five (5) days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or upon receipt if sent by electronic transmission or overnight courier service. All such communications shall be directed to the Our address set out below or Your address designated by You in connection with Your purchase of the NYS DFS Checkup™. Communications not properly directed shall not be binding upon the Party to whom such communications are directed.
9.1 Entire Agreement. This Agreement, together with the information related to your purchase of the NYS DFS Checkup™ appearing on or provided by you through the portion of the Website related to the NYS DFS Checkup™, represents the entire agreement between You and Us regarding the NYS DFS Checkup™ and supersedes all prior and contemporaneous agreements, proposals or representations concerning their subject matter.
9.2 Amendment; Waiver. This Agreement may not be altered, modified or amended except by written instrument signed by an authorized representative of each Party. All waivers must be reflected in a writing signed by a duly authorized representative of the Party granting the waiver. Without limiting the generality of the foregoing, failure to require the other Party’s performance of any obligation under this Agreement shall not affect a Party’s right subsequently to require performance of that obligation.
9.3 Severability. In the event that any one or more of the provisions contained in this Agreement or the application thereof to any person(s) or in any circumstance(s) is, for any reason, found by a court of competent jurisdiction to be invalid, illegal or unenforceable, the court making such finding shall have the power, and hereby is directed, to substitute for or limit such provision(s) in order as closely as possible to effectuate the original intent of the Parties with respect to such invalid, illegal or unenforceable provision(s) and this Agreement in total and to enforce such substituted provision(s) or, if such substitution or limitation is not possible, to deem such provision(s) to be deleted from this Agreement as if never included herein if such court finds that such enforcement does not materially alter the overall intent of the Parties with respect to this Agreement. Subject to the foregoing, the invalidity, illegality or unenforceability of any one or more of the provisions contained herein shall not affect the validity of any other provision of this Agreement.
9.4 Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association under its then-prevailing rules. Such arbitration shall be conducted by a single Arbitrator in Fairfax County, Virginia. In arriving at the award, the Arbitrator shall make every effort to find a solution to the dispute in the provisions of the Agreement and give full effect to all parts thereof. However, if a solution cannot be found in the provisions of the Agreement, the Arbitrator shall apply the law of the Commonwealth of Virginia, United States. The arbitrator shall be selected by mutual agreement of the Parties; if the Parties cannot agree upon an Arbitrator within thirty (30) days, the American Arbitration Association shall appoint an Arbitrator as soon as possible, but within thirty (30) days, in accordance with the then-prevailing rules. The arbitrator is not authorized to act as amiable compositeur but shall rule in accordance with the applicable substantive law. The Arbitrator shall streamline the procedures while ensuring fairness in order to quickly and cost-effectively resolve the dispute. The award shall be in writing. The Arbitrator may award costs and reasonable attorneys’ fees to the prevailing Party in accordance with the arbitrator’s judgment of justice and fair play.
9.5 Authority to Bind. You represent and warrant that the person executing this Agreement on Your behalf has all necessary right and legal authority to execute, enter into and bind You to this Agreement.
9.6 Execution. Purchase of a NYS DFS Checkup™ through the Website will constitute execution of this Agreement.
Assured Enterprises, Inc.
P.O. Box 10995
McLean, VA 22102-7995
(202) 215 4320