Terms & Conditions

If you are an enterprise customer, these terms (the “Agreement”) govern your use of our products and services. They apply unless you have a separate written agreement with SpyCloud.

1. DEFINITIONS

(a) “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Service by Customer or End Users.

(b) “Customer Facilities” means Credentials and any account, hardware, system or other facility within Customer’s custody or control.

(c) “Data Subjects” mean any: (i) employees of Customer; (ii) users who sign up for user accounts to purchase or use Customer’s products or services; or (iii) users who provide personal information to Customer as part of the process for using or purchasing Customer’s products or services.

(d) “Emergency Security Issue” means any: (i) use of the Service by Customer or End Users in violation of the terms and conditions of this Agreement that disrupts or is reasonably likely to disrupt the availability of the Service to other users; or (ii) access to the Service by any unauthorized third party through use of any Customer Facilities.

(e) “End Users” means employees and contractors of Customer and its affiliates.

(f) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.

(g) “Service” means SpyCloud’s proprietary online service (as may be updated from time to time) for detecting potential breaches of data security through monitoring of activities occurring online.

2. GRANT OF RIGHTS AND RESTRICTIONS

(a) Grant of Rights. During the term of this Agreement and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations on use set forth in the Order Form), SpyCloud hereby grants Customer a limited, non-exclusive, non-sublicensable right to access and use the Service only in the form made available by SpyCloud and only as necessary for End Users to monitor or investigate potential breaches of data security involving Customer or Data Subjects. SpyCloud may provide the Service through access to: (1) an application programming interface that allows End Users to run queries through the Service for information relevant to Data Subjects (“API”); or (ii) raw data files, supplemented by daily diff files (“Data Files”). All rights granted to Customer may only be exercised by Customer for Customer’s internal business purposes and in accordance with the license granted herein.

(b) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Service; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Service; (iii) access the Service for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service; (iv) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service to any third party who is not an End User or as part of a service bureau or similar fee-for-service purpose; or (v) use the Service in any way that does not comply with all applicable laws and regulations.

(c) Changes. Customer acknowledges and agrees that SpyCloud may improve, modify, add or remove functions or features to or from the Service from time to time, with or without notice to Customer.

3. CUSTOMER RESPONSIBILITIES

(a) Technical Requirements. Customer and End Users shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Service, including computers, operating systems, web browsers and storage devices.

(b) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Service through use of Customer Facilities, Customer shall immediately give written notice to SpyCloud of such unauthorized use and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to the Service through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.

(c) Policies. In addition to the terms and conditions of this Agreement, access to and use of the Service shall comply with and be subject to any terms of service, acceptable use policy, privacy policy, end user license agreement and other guidelines instituted by SpyCloud or its licensors or service providers (collectively, “Policies”).

4. FEES AND TAXES

(a) Fees. Customer shall pay SpyCloud all undisputed amounts due under the applicable Order Form pursuant to the payment terms therein. Customer is responsible for providing complete and accurate billing information to SpyCloud, including the purchase order number at the time of purchase if Customer requires one. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Customer shall bear all costs of collection for unpaid Fees. If Customer requires SpyCloud to submit invoices through a portal that imposes an administrative fee, Customer shall provide the correct instructions for SpyCloud to access the portal and reimburse SpyCloud for such fees. Customer shall provide the correct billing contact information. The invoice due date is governed by the invoice issuance date, not the date of Customer receipt of the invoice or any portal submission date.

(b) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If SpyCloud has the legal obligation to collect any Taxes, Customer shall reimburse SpyCloud upon invoice by SpyCloud. If Customer is required by law to withhold any taxes from its payments to SpyCloud, Customer shall provide SpyCloud with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payment.

5. INTELLECTUAL PROPERTY

(a) Responsibility for Data. All information, data, and other materials accessible through the Service (“Data”) are the sole responsibility of the party from whom such materials originated. Customer acknowledges and agrees that: (i) the Service may provide access to or rely on Data from third parties, and such third parties, and not SpyCloud, are entirely responsible for such Data; (ii) Customer and End Users, and not SpyCloud, are entirely responsible for all Data that Customer and End Users submit, upload, email, transmit or otherwise make available through the Service (“Customer Data”); and (iii) Customer and End Users are solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Service. Customer and End Users shall not submit, upload, email, transmit or otherwise make available through the Service any Data not owned or managed by Customer or End Users.

(b) SpyCloud Ownership. Customer acknowledges and agrees that, as between SpyCloud and Customer, SpyCloud owns all right, title and interest (including all Intellectual Property) in and to Service, including the API and Data Files.

(c) Customer Ownership. SpyCloud acknowledges and agrees that, as between Customer and SpyCloud, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data. Customer hereby grants SpyCloud and its service providers a worldwide, royalty-free, non-exclusive license to use, process, transmit and reproduce Customer Data as necessary for SpyCloud to provide the Service to Customer and End Users.

(d) Suggestions. If Customer or End Users elect to provide or make available to SpyCloud any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), SpyCloud shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute Suggestions in any manner, without credit or compensation to Customer or End Users.

(e) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Service.

(f) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

6. TERM, SUSPENSION AND TERMINATION

(a) Term. The term for this Agreement shall commence on the Effective Date and end on the earlier date of: (i) the expiration or termination of all applicable Order Forms under this Agreement; or (ii) termination of this Agreement under Section 6(c).

(b) Renewal. Any Order Forms under this Agreement shall commence on the Effective Date and continue in effect until the End Date (the “Initial Term”), each as specified in the Order Form. Unless otherwise stated in the applicable Order Form, or unless either party has given the other party written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term, Customer agrees that this Agreement and any applicable Order Form will automatically renew at the end of the then-current Term for a renewal period equal to the then-current Term (“Renewal Term”), at SpyCloud’s then-current rate. SpyCloud reserves the right to change prices for the Service for any upcoming Renewal Term by providing notice of such change within the Service or via email to Customer at least sixty (60) days before the commencement of the applicable Renewal Term.

(c) Suspension. SpyCloud reserves the right to suspend Customer or any End User’s access to the Service in the following scenarios: (i) in the event that Customer fails to fulfill its payment obligations in Section 4(a) for thirty (30) days; (ii) in the event of an Emergency Security Issue; (iii) if Customer’s usage of the Service exceeds any limits set forth in any Order Form; or (iv) if Customer or any End User violates a Policy. SpyCloud will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the issue

(d) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business; or (iv) by SpyCloud if Customer fails to remedy a suspension event pursuant to Section 6(c) within fifteen (15) days.

(e) Events Upon Termination. Upon termination of this Agreement for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; (ii) Customer shall immediately cease all use of the Service; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) and return or destroy all copies of such Confidential Information that are within its custody or control. Without limiting the generality of this Section 6(d), in the event that Customer has received any Data Files, Customer shall, upon termination of this Agreement for any reason: (1) cease use of and delete all copies of Data Files within Customer’s custody or control; and (2) provide SpyCloud with a written certification signed by an officer of Company attesting to Customer’s compliance. Notwithstanding the foregoing, each party shall be permitted to retain one copy of the other party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes, and neither party will be required to search archived electronic back-up files of its computer systems for the other party’s Confidential Information in order to purge the other party’s Confidential Information from its archived files; provided further, that any Confidential Information so retained will (A) remain subject to the obligations and restrictions contained in this Agreement, (B) will be maintained in accordance with the retaining party’s document retention policies and procedures, and (C) the retaining party will not use the retained Confidential Information for any other purpose.

(f) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(b) {Restrictions}; 4 {Fees and Taxes}; 5 {Intellectual Property}; 6(d) {Events Upon Termination}; 6(e) {Survival}; 7 {Representations and Warranties}; 8 {Indemnification}; 9 {Confidential Information}; 10 {Disclaimer of Warranties}; 11 {Limitation of Liability}; and 12 {Miscellaneous}.

7. REPRESENTATIONS AND WARRANTIES

SpyCloud and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.

8. INDEMNIFICATION

(a) SpyCloud Indemnification. SpyCloud agrees that Customer shall have no liability and SpyCloud shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Customer or End Users’ use of the Service infringes the Intellectual Property of such third party; provided, however, that SpyCloud shall have no obligation to indemnify Customer from any Losses to the extent they arise from: (i) use of the Service in any manner that does not comply in all material respects with the terms and conditions of this Agreement or any Policies or applicable laws or regulations; (ii) use of the Service in combination with any hardware or software not provided or approved by SpyCloud; (iii) modifications to the Service not made or authorized by SpyCloud; or (iv) any Customer Data (Sections 8(a)(i) through 8(a)(iv), collectively, “Customer Acts”). In the event that any part of the Service becomes the subject of a Loss or SpyCloud reasonably determines that any part of the Service is likely to become the subject of a Loss, SpyCloud may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by SpyCloud under this Agreement; (2) modify or replace the Service to avoid infringement, provided, however, that the Service as modified or replaced retains materially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund of the fees paid by Customer to SpyCloud for the unused portion of the Initial Term or Renewal Term, as applicable.

(b) Customer Indemnification. Customer agrees that SpyCloud shall have no liability and Customer shall indemnify, defend and hold SpyCloud harmless against any Loss to the extent arising from: (i) Customer Acts or Customer’s breach of Sections 2(b), 3, 5 or 9; (ii) any dispute between Customer and Data Subjects; and (iii) any violation of applicable laws or regulations by Customer or End Users. If Customer is U.S. Government Customer (as defined in Section 12), Customer’s indemnification obligations under this section will only apply to the extent permitted by applicable law.

(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any Loss or threat of Loss; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Loss or threat of Loss; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

9. CONFIDENTIAL INFORMATION

(a) Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, under the circumstances, should reasonably be understood to be confidential or proprietary. Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement, the source code and architectural framework of the Service, API specifications, and Data Files, information relating to future releases of the Service, information available via the Service, and pricing information and business plans provided by either party.

(b) Non-Disclosure. Each party agrees that it will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third party Confidential Information of the other party. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. Notwithstanding anything to the contrary, SpyCloud shall be permitted to identify Customer as a SpyCloud customer.

10. DISCLAIMER OF WARRANTIES

ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER OR END USERS’ REQUIREMENTS.

11. LIMITATION OF LIABILITY

OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF SECTION 2(b) OR 9: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICE OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY SPYCLOUD FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.

12. U.S. GOVERNMENT MATTERS

(a) Each party represents that it is not named on any United States government list of persons or entities restricted from doing business with any United States company. Customer shall not directly or indirectly access or use the Service in violation of any United States or international export embargo, prohibition or restriction.

(b) If Customer is a U.S. federal government department or agency (“U.S. Government Customers”), the Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. All U.S. Government Customers acquire subscriptions to the Service only as a “Commercial item” and only with those rights that are granted to all other end users pursuant to the terms and conditions of this Agreement, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024. U.S. Government Customers may only use the Service for a governmental-related purpose.

13. Miscellaneous

(a) Independent Contractors. The relationship between SpyCloud and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.

(b) Notice. All notices, demands, and other communications under this Agreement must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/return receipt requested); or (ii) the first business day after sending by email. Notices to SpyCloud should be sent to legal@spycloud.com or to SpyCloud’s Legal Department at the address specified above. Billing notices and notices relating to this Agreement will be sent to the contacts designated by Customer on the Order Form.

(c) Assignment. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of SpyCloud which will not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(d) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

(e) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.

(f) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party. No terms in Customer’s purchase order or other order documents (excluding Order Forms) will be incorporated into this Agreement, regardless of any terms to the contrary, and SpyCloud expressly rejects all such terms.

(g) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

(h) Dispute Resolution; Governing Law. The parties shall use good faith, reasonable efforts to resolve any dispute before initiating legal action. The laws of the State of Delaware, excluding choice of law principles, govern this Agreement.

(i) Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

(j) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Wilmington, Delaware. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.

(k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.

(l) Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party, including but not limited to an electrical, internet, or telecommunication change or outage not caused by the obligated party; government restrictions; or illegal acts of third parties. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

(m) Use of Logo. During the term of this Agreement, SpyCloud may use Customer’s name and logo on SpyCloud’s website and marketing materials solely for the purpose of identifying Customer as a SpyCloud customer. Any such use of Customer’s name and logo shall comply with any usage guidelines provided by Customer.

(n) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.

This End User License Agreement (“EULA”) governs your use of software, software-based services, and data provided by SpyCloud, Inc., a Delaware corporation with offices at 2130 S. Congress Ave., Austin, TX 78704 (“SpyCloud”). By using the Products or by entering into an agreement to which these terms are appended, you agree to be bound by the terms of this EULA and the Independent Controller Data Processing Addendum (“DPA”) available at https://spycloud.com/legal-and-privacy-center/data-processing-addendum/. The terms “Customer”, “you” and “your” will refer to the entity using the Products.

1. DEFINITIONS

(a) “Credentials” means any user accounts, passwords and other authentication credentials associated with your use of the Products.

(b). “Customer Facilities” means Credentials and any account, hardware, system or other facility within your custody or control.

(c) “Data Subjects” mean any: (i) your employees; (ii) your users who sign up for user accounts to purchase or use your products or services; or (iii) users who provide personal information to you to use or purchase your products or services.

(d) “Emergency Security Issue” means any: (i) use of the Products by you or End Users in violation of the terms and conditions of this Agreement that disrupts or is reasonably likely to disrupt the availability of the Products to other users; or (ii) access to the Products by any unauthorized third party through use of any your Facilities.

(e) “End Users” means your employees and contractors.

(f) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.

(g) “Order Form” means a document or combination of documents memorializing Customer’s purchase of Products (including an order form, quote, purchase order, statement of work, or other form of an ordering document submitted by Customer to (i) SpyCloud, or (ii) a Company authorized reseller.

(h) “Products” means SpyCloud’s proprietary software-based services (as may be updated from time to time) for detecting potential breaches of data security through monitoring of activities occurring online.

(i) “Professional Services” means implementation services, consulting services or other related services provided under an Order Form, as further specified in a Statement of Work (“SOW”).

2. GRANT OF RIGHTS AND RESTRICTIONS

(a) Grant of Rights. During the term of this Agreement and subject to your compliance in all material respects with the terms and conditions of this EULA, SpyCloud hereby grants you a limited, non-exclusive, non-sublicensable right to access and use the Products only in the form made available by SpyCloud and only as necessary for End Users to monitor or investigate potential breaches of data security involving you or Data Subjects. All rights granted to Customer may only be exercised by Customer for Customer’s internal business purposes and in accordance with the license granted herein.

(b) Restrictions. Except as expressly permitted under this Agreement, you shall not, nor shall you permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Products; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Products; (iii) access the Products for purposes of benchmarking or developing, marketing, selling or distributing any product or Products that competes with or includes features substantially similar to the Products; (iv) rent, lease, lend, sell or sublicense the Products or otherwise provide access to the Products to any third party who is not an End User or as part of a Products bureau or similar fee-for-Products purpose; or (v) use the Products in any way that does not comply with all applicable laws and regulations.

(c) Changes. You acknowledge and agrees that SpyCloud may improve, modify, add or remove functions or features to or from the Products from time to time, with or without notice provided such update will not materially decrease the functionality of the Products during the applicable Term.

(d) Professional Services. Any Professional Services to be provided will be specified in an SOW, which shall describe the scope of such services and the fees, costs, and expenses payable by Customer in connection with the performance of such Professional Services. Each SOW shall be subject to the terms of this Agreement and any Order Form. SpyCloud is responsible for all SpyCloud personnel providing Professional Services and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.

3. CUSTOMER RESPONSIBILITIES

(a) Technical Requirements. You are solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the Products, including computers, operating systems, web browsers and storage devices (“Facilities”).

(b) Protection. You are solely responsible for protecting the confidentiality of Credentials and all activities undertaken using your Facilities. If you become aware of any unauthorized access to or use of the Products through use of your Facilities, you shall immediately give written notice to SpyCloud of such unauthorized use and make reasonable efforts to eliminate it. You shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to the Products through your Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.

(c) Policies. Your access to and use of the Products and Professional services shall comply with and be subject to: (i) SpyCloud’s Privacy Policy (located at https://spycloud.com/legal-and-privacy-center/privacy-policy/); (ii) any usage limits set forth in any Order Form; and (ii) any terms of service, acceptable use policy, privacy policy, end user license agreement and other guidelines instituted by SpyCloud’s licensors or service providers that are provided to Customer prior to or contemporaneously with access to the Service or agreed to in writing by Customer (collectively, “Policies”).

4. INTELLECTUAL PROPERTY

(a) Responsibility for Data. All information, data, and other materials accessible through the Products (“Data”) are the sole responsibility of the party from whom such materials originated. You acknowledge and agrees that: (i) the Products may provide access to or rely on Data from third parties, and such third parties, and not SpyCloud, are entirely responsible for such Data; (ii) you, are entirely responsible for all Data that you and End Users submit, upload, email, transmit or otherwise make available through the Products (“Customer Data”); and (iii) you are solely responsible for giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Products. You shall not submit, upload, email, transmit or otherwise make available through the Products any Data not owned or managed by you.

(b) SpyCloud Ownership. SpyCloud owns all right, title, and interest (including all intellectual property rights) in and to Products.

(c) Customer Ownership. You own all right, title, and interest (including all intellectual property rights) in and to Customer Data. You hereby grant SpyCloud and its service providers a worldwide, royalty-free, non-exclusive license to use, process, transmit and reproduce Customer Data as necessary for SpyCloud to provide the Products to you and End Users.

(d) Suggestions. If you elect to provide or make available to SpyCloud any suggestions, comments, ideas, improvements or other feedback relating to the Products (“Suggestions”), SpyCloud shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute Suggestions in any manner, without credit or compensation you.

(e) Intellectual Property Notices. You shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Products.

(f) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

5. SUSPENSION AND TERMINATION

(a) Suspension. SpyCloud reserves the right to suspend your access to the Products in the event of an Emergency Security Issue. SpyCloud will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue.

(b) Termination. The license shall terminate: (i) upon a material breach of this EULA, which breach is not cured within thirty (30) days after receipt of written notice from SpyCloud; or (ii) at the same time as any master services or similar agreement to which this EULA is appended.

(c) Events Upon Termination. Upon termination of this Agreement for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; (ii) you shall immediately cease all use of the Products. You shall: (1) cease use of and delete all copies data transmitted via the Products; and (2) provide SpyCloud with a written certification attesting to your compliance.

(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.

6. WARRANTIES; DISCLAIMER

(a) Each party each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this EULA; (b) the execution and performance of this EULA has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this EULA will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this EULA valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this EULA. SpyCloud further represents and warrants that: (a) it shall perform any Professional Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with industry standards for similar services and shall devote adequate resources to meet its obligations under this EULA; (b) the Products will perform in accordance with any applicable documentation and the outputs, if any, will be of a reasonable quality.

(b) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT, ALL PRODUCTS AND PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND PRODUCTSS PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND PRODUCTSS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET YOUR OR END USERS’ REQUIREMENTS.

7. INDEMNITY

(a) By SpyCloud. SpyCloud shall indemnify you against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that you or your End Users’ use of the Products and/or any Professional Services infringes the Intellectual Property of such third party; provided that SpyCloud shall have no obligation to indemnify you from any Losses to the extent they arise from: (i) your use of the Product in any manner that does not comply in all material respects with the terms and conditions of this Agreement or any Policies or applicable laws or regulations; (ii) your use of the Products in combination with any hardware or software not provided or approved by SpyCloud; (iii) modifications made to the Products by you that are not authorized by SpyCloud; or (iv) any Customer Data (Sections 7(a)(i) through 7(a)(iv), collectively, “Customer Acts”). In the event that any part of the Products becomes the subject of a Loss or SpyCloud reasonably determines that any part of the Products is likely to become the subject of a Loss, SpyCloud may, at its sole discretion: (1) procure for you a license as necessary for you to exercise the rights granted by SpyCloud under this Agreement; (2) modify or replace the Products to avoid infringement, provided, that the Products as modified or replaced retains materially the same or better features and functionality; or (3) terminate this EULA and provide a pro rata refund of the fees paid by you for the unused portion of the Initial Term or Renewal Term, as applicable.

(b) By Customer. You shall indemnify SpyCloud against any Loss to the extent arising from: (i) Customer Acts or your breach of Sections 2(b), 3, 5 or 9; and (iii) any violation of applicable data protection laws or regulations by you or your End Users. If you are a U.S. Government Customer (as defined in Section 12), your indemnification obligations under this section will only apply to the extent permitted by applicable law.

(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any Loss or threat of Loss; provided that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section Error! Reference source not found., except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Loss or threat of Loss; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss; provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

8. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR BREACH OF SECTION 2(b) OR 9: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS Agreement, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE PRODUCTS OR SERVICE OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS Agreement EXCEED THE AMOUNT OF FEES RECEIVED BY SPYCLOUD FROM CUSTOMER UNDER THIS Agreement IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.

9. U.S. GOVERNMENT MATTERS

(a) Each party represents that it is not named on any United States government list of persons or entities restricted from doing business with any United States company. You shall not directly or indirectly access or use the Products in violation of any United States or international export embargo, prohibition or restriction

(b) If you are a U.S. federal government department or agency (“U.S. Government Customers”), the Products are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. All U.S. Government Customers acquire subscriptions to the Products only as a “Commercial item” and only with those rights that are granted to all other end users pursuant to the terms and conditions of this Agreement, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024. U.S. Government Customers may only use the Prdocuts for a governmental-related purposes

10. MISCELLANEOUS

(a) Independent Contractors. The relationship between SpyCloud and you established by this EULA is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.

(b) Notice. All notices, demands, and other communications under this EULA must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/return receipt requested); or (ii) the first business day after sending by email. Notices to SpyCloud should be sent to contracts@spycloud.com or to SpyCloud’s Contracts Department at the address specified above.

(c) Assignment. You may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of SpyCloud which will not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(e) Entire Agreement. This EULA contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this EULA and any other instrument, the terms and conditions of this EULA shall take precedence.

(f) Severability. If any provision of this EULA shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

(g) Dispute Resolution. The parties shall use good faith, reasonable efforts to resolve any dispute before initiating legal action.

(h) Contract for Products. This Agreement is a contract for the provision of software-based services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

(i) No Waiver. Any waiver of the provisions of this EULA, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.

Last Modified: January 18, 2023

Acceptance of the Terms of Use

These terms of use are entered into by and between you and SpyCloud, Inc. (“SpyCloud,” “we,” or “us“). The following terms and conditions, together with our Privacy Policy, found at spycloud.com/legal-and-privacy-center/privacy-policy and incorporated herein by reference (collectively, “Terms of Use“), govern your access to and use of spycloud.com, including any content, functionality, and services offered on or through spycloud.com (the “Website“).

Please read the Terms of Use carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms of Use. If you do not want to agree to these Terms of Use, do not access or use the Website.

By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company. If you do not meet all of these requirements, do not access or use the Website.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. Check this page from time to time so you are aware of any changes, as they are binding on you.

Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

You are responsible for both:

Making all arrangements necessary for you to have access to the Website.
Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy (spycloud.com/legal-and-privacy-center/privacy-policy) and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We may disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion, including if, in our opinion, you have violated any provision of these Terms of Use.

Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
You may store files that are automatically cached by your Web browser for display enhancement purposes.
You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

Modify copies of any materials from this site.
Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you wish to make any use of material on the Website other than that set out in this section, please address your request to legal@spycloud.com.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

Trademarks

SpyCloud® and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to:

Use the Website in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries) or for the purposes of exploiting, harming, or attempting to exploit or harm individuals in any way;
Use the Website to impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
Use the Website to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability;
Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website;
Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent;
Use any device, software, or routine that interferes with the proper working of the Website;
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website;
Attack the Website via a denial-of-service attack or a distributed denial-of-service attack; and
Otherwise attempt to interfere with the proper working of the Website.

Monitoring and Enforcement; Termination

We have the right to monitor your use of the Website; take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website; and terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

YOU WAIVE AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY THE COMPANY OR LAW ENFORCEMENT AUTHORITIES UNDER THIS SECTION.

We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Social Media and Links from the Website

We may provide social media features at our discretion. Your use of such social media features is subject to the terms and conditions of such social media providers. We may disable all or any social media features at any time without notice in our discretion.

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links to social media sites and links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Geographic Restrictions

Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

Disclaimer of Warranties

You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.

Governing Law and Jurisdiction

All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in the City of Austin and County of Travis. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Limitation on Time to File Claims

TO FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Entire Agreement

The Terms of Use constitute the sole and entire agreement between you and [COMPANY NAME] regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.