BY CLICKING THE “SIGN UP” BUTTON OR USING OUR WEBSITE AND/OR ANY SERVICES RELATING TO THESE TERMS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SAFEGUARD CYBER, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE INDIVIDUAL OR ENTITY YOU HAVE NAMED AS THE CUSTOMER.
1. SERVICES AND SUPPORT
1.2 Restrictions. Customer agrees that it and its Users will not: (a) permit any third party to access and/or use the Service, other than the Users; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service, including any external websites that are linked to via the Service; (d) reverse engineer, decompile, disassemble or otherwise attempt to obtain or perceive the source code from which any software component of the Service is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (e) access the Service in order to build or create a derivative, competitive or similar product or service or copy any ideas, features, functions or graphics of the Service; (f) use the Service to stalk, harm and/or harass another; or (g) access or use the Service in any manner that could damage, disable, overburden or impair any SafeGuard Cyber server or the networks connected to any SafeGuard Cyber server. Customer shall undertake reasonable efforts to make all Users aware of the provisions of this Section
1.2. Customer acknowledges and agrees that the Service will not be used, and are not licensed for use, in connection with any time-critical or mission-critical functions.
2. CUSTOMER RESPONSIBILITIES
2.1 Internet Access. Customer will be responsible for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Users to connect to, access, and use the Service.
2.2 Accurate Customer Information. Customer is responsible for providing accurate, current and complete contact information, including Customer’s legal business name, physical address, email address and phone number and for updating this information promptly in the event of any change.
2.3 Administration of Usernames and Passwords. As part of the registration process, Customer will identify an administrative user name and password for Customer’s SafeGuard Cyber account. Customer may use the administrative user name and password. Customer will ensure that each username and password issued to a User will be used only by that User. Customer is responsible for maintaining the security of its user names and passwords at the user level and for promptly changing or deleting any user name or password that Customer believes may have been compromised. SafeGuard Cyber reserves the right to institute password requirements (such as the length of password or the required use of numbers, symbols etc.) and to refuse registration of, or cancel passwords it deems inappropriate.
2.4 Responsibility for User Activity. Customer shall be responsible for all activities undertaken by Users in connection with their use of the Services, as well as for any failure on the part of its Users, employees or agents to comply with any relevant law or regulation.
2.5 Third party Services. The Service may allow SafeGuard Cyber to use on Customer’s behalf with a variety of third party software or services obtained separately by Customer (e.g., Facebook, Twitter, LinkedIn) (“Third party Services”). No endorsement of any such Third party Service should be inferred as a result of any integration with the Service and SafeGuard Cyber is not responsible for the data, operation or functionality of such Third party Services. While SafeGuard Cyber may, in its sole discretion, customize the Service to interoperate with various Third party Services: (i) Customer is responsible for complying with the terms and policies of each such Third party Service including, without limitation, any payment obligations related thereto; (ii) Customer will make available the necessary access protocols for SafeGuard Cyber to access the applicable accounts on the Third party Service and (iii) SafeGuard Cyber cannot guarantee that such Third party Services will continue to be available or interoperate with the Service. SafeGuard Cyber shall endeavor to provide as much notice as practicable if any Third party Service or a material component thereof is no longer available, but SafeGuard Cyber will not be in breach of this Agreement for any such unavailability.
3. SAFEGUARD CYBER RESPONSIBILITIES
3.1 Support. SafeGuard Cyberd will provide Customer with commercially reasonable online or email-based support services in accordance with SafeGuard Cyber’S standard practices.
3.2 Service Level. SafeGuard Cyber will use commercially reasonable efforts to make the Service available 99.9% of the time twenty four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which SafeGuard Cyber shall give at least eight (8) hours’ notice via the Service and which SafeGuard Cyber shall schedule to the extent reasonably practicable between Friday at 22:00 EST and Sunday 14:00 EST); or (ii) any unavailability caused by circumstances beyond SafeGuard Cyber's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SafeGuard Cyber employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within SafeGuard Cyber’s possession or reasonable control, and denial of service attacks.
3.3 Professional Services. If Customer has elected to purchase training or other professional services from SafeGuard Cyber, then SafeGuard Cyber will use commercially reasonable efforts to perform such training and/or professional services in a professional manner in accordance with the criteria agreed to by the parties on the Order Form. Unless and until the Customer has ordered such services, SafeGuard Cyber will have no obligation to provide any services to Customer.
3.4 Modifications. SafeGuard Cyber may make modifications to the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modification, provided that SafeGuard Cyber will not materially reduce the overall functionality offered by the Service.
4. CUSTOMER DATA
4.1 License. As between the parties, Customer owns all data uploaded by Customer to SafeGuard Cyber via the Service or otherwise collected by SafeGuard Cyber in the provision of the Service (“Customer Data”). Customer acknowledges that SafeGuard Cyber may use the Customer Data to provide the Service and as otherwise set forth herein, and Customer licenses SafeGuard Cyber to use the Customer Data to provide the Service to Customer under this Agreement. Customer will procure all rights and privileges to obtain and transfer data to SafeGuard Cyber, and permit SafeGuard Cyber to collect from Third party Services, Customer Data.
4.2 Commitment. Customer represents and warrants that it owns or otherwise has sufficient right to grant SafeGuard Cyber access to and use of the Customer Data in accordance with the terms of this Agreement. Customer shall be responsible for and assumes the risk, responsibility and expense of any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of all such Customer Data. The provision of such data from Customer to SafeGuard Cyber shall be in compliance with all applicable laws and regulations, including all privacy laws and regulations.
4.3 Aggregate Data. Customer grants to SafeGuard Cyber a perpetual right to use the Customer Data to create anonymized aggregated data, industry reports and/or statistics (“Aggregate Data”) to be used for SafeGuard Cyber’ business purposes and industry reporting and education; provided, however, that such Aggregate Data will not: (i) personally identify Customer or any individual end user of Customer; or (ii) otherwise enable a third party to determine which portion of the Aggregate Data is attributable to Customer or its Users. As between the parties, SafeGuard Cyber will own all right, title and interest in and to the Aggregate Data.
4.4 Permitted Disclosures. Without limiting the foregoing, SafeGuard Cyber may disclose Customer Data to the limited extent required (x) in order to comply with the order of a court or other governmental body or agency, or as otherwise necessary to comply with applicable law or a subpoena, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish its rights under this Agreement, including to make such court filings as it may be required to do.
5. FEES; TAXES
5.1 Fees. The Service is provided for on an annual subscription basis and all fees are as set forth in the Order Form (the “Fees”). The Fees are due and payable to SafeGuard Cyber as set forth on the Order Form and in advance. Except as explicitly set forth herein, all Fees are non-refundable.
5.2 Taxes. In the event that SafeGuard Cyber is required to pay any withholding tax to any government entity in Customer’s jurisdiction in connection with the provision of the Service to Customer, then such withholding tax shall be billed to Customer in addition to the annual Fees such that the net payment received by SafeGuard Cyber or its designated reseller after the deduction of such withholding tax remains the same as if no withholding tax were applicable. Any such invoice shall be due and payable no later than thirty (30) days following date of invoice. SafeGuard Cyber’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on SafeGuard Cyber’s income.
6. TERM; TERMINATION
6.1 Term. This Agreement will continue to apply as long as the Access Term under an Order Form remains in effect, unless earlier terminated by either Customer or SafeGuard Cyber as set forth herein (the “Term”). Unless otherwise set forth in an Order Form, the Access Term set forth in any Order Form will automatically renew for successive periods equal in length to the initial Access Term. “Access Term” means the period during which Customer and the Users are licensed to use the Service pursuant to an Order Form.
6.2 Termination for Breach. Either party may terminate this Agreement immediately upon written notice in the event that the other party materially breaches the Agreement and thereafter: (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating party) within thirty (30) days after receiving written notice thereof.
6.3 Termination by SafeGuard Cyber. SafeGuard Cyber may at any time terminate its agreement with Customer if: (i) SafeGuard Cyber is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful); (ii) the provision of the Service to Customer by SafeGuard Cyber is, in SafeGuard Cyber’s opinion, no longer commercially viable; or (iii) SafeGuard Cyber has elected to discontinue the Service (or any part thereof).
6.4 Suspension of Service. If Customer fails to pay undisputed amounts in accordance with this Agreement or, if and as necessary to protect the Customer Data in the event of a threat to the security of the Service, SafeGuard Cyber will have the right, in addition to any of its other rights or remedies, to immediately suspend the provision of the Service to Customer without liability to Customer until such amounts are paid in full or such breach is cured (in SafeGuard Cyber’s sole discretion), as applicable.
6.5 Effect of Termination. Termination of Customer’s account includes: (i) removal of access to all offerings within the Service; (ii) deletion of Customer’s password and all related information; and (iii) barring of further use of the Service. Upon expiration or termination, Customer shall promptly discontinue use of the Service. However, Sections 4, 5, 6.5, 7, and 9 through 11 will survive any termination of the Agreement. Upon termination of Customer’s use of the Service for any reason, SafeGuard Cyber may, but is not obligated to, delete any archived data associated with Customer’s account. For up to thirty (30) days after the effective date of termination, SafeGuard Cyber will, upon written request, make available to Customer a copy of its Customer Data in one of SafeGuard Cyber’s standard formats.
7. INTELLECTUAL PROPERTY
7.1 Service. The Service and any of the SafeGuard Cyber’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to Customer by SafeGuard Cyber in providing the Service and, if applicable, Professional Services, as well as any intellectual property rights therein (the “SafeGuard Cyber Technology”) is the exclusive property of SafeGuard Cyber or its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Service or the SafeGuard Cyber Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the SafeGuard Cyber Technology. All rights not expressly granted to Customer are reserved to SafeGuard Cyber. Ownership of all work product, developments, inventions, technology or materials provided by SafeGuard Cyber under this Agreement will be solely owned by SafeGuard Cyber.
7.2 Feedback. SafeGuard Cyber, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer or Users to SafeGuard Cyber in connection with the Service (all such comments and suggestions, collectively, “Feedback”). Customer hereby grants SafeGuard Cyber a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into SafeGuard Cyber products and services.
7.3 Service Reports. SafeGuard Cyber shall retain the ownership of any report template, report structure, and the like but not any Customer Data contained therein.. Customer will use all statistics or reports computed or generated by the Services hereunder (the “Service Reports”), for Customer’s internal analysis purposes only. SafeGuard Cyber shall not disclose to any third party any Service Reports that specifically identify Customer without Customer’s consent. Customer shall not disclose to any third party any Service Reports without SafeGuard Cyber’s prior consent and any such permitted disclosure will include attribution to SafeGuard Cyber in the form and format provided by SafeGuard Cyber. Customer acknowledges and agrees that: (a) SafeGuard Cyber relies to a certain extent on unrelated third parties to compile and supply the data underlying the Service Reports; (b) the Service Reports are subject to various inaccuracies; and (c) any such inaccuracies shall not be deemed a breach or default under this Agreement.
8.1 Warranty. SafeGuard Cyber warrants that the Service will perform substantially in accordance with the documentation provided to Customer in connection with the provision of the Service. If Customer notifies SafeGuard Cyber of a breach, SafeGuard Cyber will reperform the nonconforming portion of the Service or related services. The foregoing constitutes Customer’s sole and exclusive remedy for any breach of warranty and does not apply to any Customer Data contained within the Service.
8.2 Disclaimer. SAFEGUARD CYBER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE WILL PROTECT AGAINST ALL POSSIBLE THREATS OR ATTACKS; NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT SAFEGUARD CYBER ANALYZES DATA THAT IS MADE AVAILABLE PUBLICLY THROUGH THE INTERNET AND THAT SAFEGUARD CYBER MAKES NO REPRESENTATIONS WITH RESPECT THERETO. THE SERVICES ARE PROVIDED “AS IS” AND SAFEGUARD CYBER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SAFEGUARD CYBER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SAFEGUARD CYBER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS OR ANY OTHER FORCE MAJEURE EVENT.
9. LIMITATION OF LIABILITIES.
9.1 Disclaimer. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL CAUSE OF ACTION (REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE TO THE MAXIMUM EXTENT PERMITTED BY LAW).
9.3 Exclusion. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 10 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
10.1 By SafeGuard Cyber. SafeGuard Cyber will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Service (apart from any Customer Data therein) infringes the intellectual property rights of such third party, and SafeGuard Cyber will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Service becomes, or in SafeGuard Cyber’s opinion is likely to become, the subject of an infringement claim, SafeGuard Cyber may, at its option and expense, (i) procure for Customer the right to continue use of the Service, (ii) modify the Service so that it becomes non-infringing, or (iii) refund to Customer any fees prepaid by Customer under the Order Form for the Service prorated for the amount of time remaining in the applicable term, and terminate the applicable Order Form by written notice to Customer. Notwithstanding the foregoing, SafeGuard Cyber will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (1) any use of the Service not in accordance with the terms of this Agreement; or (2) Customer Data.
10.2 By Customer. Customer will defend at its own expense any action against SafeGuard Cyber brought by a third party to the extent that the action is based upon any Customer Data. Customer will pay those costs and damages finally awarded against SafeGuard Cyber in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (i) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (ii) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, to facilitate the settlement or defense of any claim or suit.
11.2 Electronic Communications. The communications between Customer and SafeGuard Cyber relating to the Service may use electronic means. For contractual purposes, Customer: (a) consents to receive communications from SafeGuard Cyber in an electronic form, whether via email or posting on the Service or other reasonable means; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that SafeGuard Cyber provides to Customer electronically satisfy any legal requirement that such communications would satisfy if they were in a print-on-paper writing.
11.3 Revisions. SafeGuard Cyber may change the terms and conditions in this Agreement from time to time at its sole discretion, and if SafeGuard Cyber makes any substantial changes, SafeGuard Cyber will send an email to the last email address Customer provided to SafeGuard Cyber. Any such changes will be effective on the subsequent renewal of the Access Term. If Customer objects to the renewal, Customer’s sole and exclusive remedy will be to not renew (which must be done in accordance with the applicable Order Form).