This Terms of Service(“Agreement”) is a legal agreement between you (referred to herein as “YOU”, “YOUR” or “END USER”) and (A) Transmit Security, Inc., 201 Washington Street, Suite 2600, Boston, MA 02108, United States, if you are located in North America, Latin America or Japan; (B) Transmit Security Ltd., 94 Yigal Alon Street, Tel Aviv, 6789139, Israel, if you are located outside North America, Latin America or Japan, or (C) Transmit Security (CA) Services Ltd. 700 West Georgia Street, Suite 2200, Vancouver BC V7Y 1K8 Canada, if you are located in Canada (“TRANSMIT SECURITY”).
THIS AGREEMENT GOVERNS THE USE OF TRANSMIT SECURITY’S PRODUCTS (hereinafter “Product”). BY DOWNLOADING, INSTALLING, ACCESSING, EVALUATING OR OTHERWISE USING THE PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE BOUND TO THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL ITS TERMS, IMMEDIATELY CEASE USING OR ACCESSING THE PRODUCT. THIS AGREEMENT GOVERNS YOUR USE OF THE PRODUCTS HOWEVER THEY WERE ACQUIRED INCLUDING WITHOUT LIMITATION THROUGH AN AUTHORIZED DISTRIBUTOR, RESELLER, ONLINE APP STORE, OR MARKETPLACE.
TRANSMIT SECURITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
If you use a Product for proof of concept, beta testing, trial, evaluation, or other similar purpose (“Evaluations”), you may do so for 30 days only unless Transmit Security issues an extension. Transmit Security reserves the right to terminate Evaluations at any time. For Evaluations, Section 6 is excluded from this Agreement since Evaluations are provided “AS IS”. Any other limitations for Evaluations will be in accordance with the applicable order or schedule.
1. Definitions. The terms used in this Agreement shall have the following definitions:
a. “Authorized Use” means use allowed in connection with this Agreement.
b. “End User” means an individual who accesses the Product via Transmit Security’s customer’s account credentials and/or who is using the Services via a developer platform.
c. “End User Data” means data that may be accessed or collected by Product during the relationship governed by this Agreement, in the form of logs, session data, telemetry, user data, usage data, and threat intelligence data. End User Data may include confidential data and personal data, such as source and destination IP addresses.
2. License Grant and Access Rights
a. Transmit Security grants You a limited, revocable, non-transferable and non-exclusive right to use the Product.
b. End User shall agree to use the Product only for the Authorized Use. End User shall be prohibited from replicating or distributing the Product, or otherwise using the Product other than for the Authorized Use.
c. End User shall agree to comply with all applicable laws, regulations, and ordinances relating to its performance and the exercise of its rights under the Licensed Agreement.
d. Audit. If the Product permits You to exceed the use authorizations set forth in an Order Form (e.g., soft limits on user counts, transactions, sessions, etc.), then You are responsible for purchasing additional quantities to account for excess usage. Transmit Security may audit Your use of the Product (e.g., through use of software tools) to assess whether Your usage is in accordance with the applicable Order. You agree to cooperate with the audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations and will be conducted at Transmit Security’s expense. You agree to pay within thirty (30) days of written notification any charges applicable to excess usage, based on the then-current unit rates in the applicable Order Form. You agree that Transmit Security shall not be responsible for any of Your costs incurred in cooperating with the audit.
e. Restrictions. With regard to the Product, and any component thereof, a Product may not be used in any jurisdiction for unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, spam, abusive or deceptive messages, viruses or harmful code, or violating third party rights. In addition, You will not (i) access the Product or its output for the purpose of developing a competitive product or service; (ii) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or any component thereof; (iii) modify or prepare derivative works, (iv) assign, copy, reproduce, modify, sell, lease, pledge, transfer to or share with any third party, sublicense, market, commercially exploit, or otherwise dispose of in any way, on a temporary or permanent basis (v) use in any manner that infringes or misappropriates the intellectual property rights or other rights of Transmit Security or another party; (vi) distribute or re-distribute; (vii) use to provide service-bureau, software rental, time sharing or any data services to any third party; (viii) bundle, integrate, or attempt to integrate with any third-party software or solution; (ix) interfere with or disrupt the integrity or performance of the Product, including conducting any load or penetration testing on the Product; or (x) use in any way not specifically licensed pursuant to this Agreement or not in accordance with provided related documentation.
3. Ownership
a. Transmit Security and its suppliers retain all rights to intellectual and intangible property relating to the Product, including but not limited to copyrights, patents, trade secret rights, and trademarks and any other intellectual property rights therein unless otherwise indicated. As between End User and Transmit Security, all rights, title and interest in and to the Product is owned solely by Transmit Security. You further acknowledge that the Product constitutes proprietary information and trade secrets of Transmit Security or its licensors and that the Product is protected intellectual property throughout the world. You shall acknowledge that Your use of the Product shall not operate so as to transfer or convey to End User or any third party any right, title or interest in or to the Product or any associated intellectual property rights, but only a limited right of use, revocable in accordance with the terms of this Agreement.
b. Feedback. To the extent You provide any suggestions or comments related to the Product, Transmit Security shall have the right to retain and use any such suggestions or comments in current or future products or subscriptions, without your approval or compensation to you.
4. Confidential Information
To the extent that confidential and proprietary information of each Party (“Confidential Information”) is exchanged and received in connection with the Product, each Party agrees not to use the other Party’s Confidential Information except in the performance of, or as authorized by this Agreement. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision, (ii) information previously known by or developed by the receiving Party independent of the Confidential Information; (iii) information that the receiving Party rightfully obtains without restrictions on use and disclosure; or (iv) information that is required to be disclosed pursuant to any law or regulation or by the rules of any stock exchange or by a court of competent jurisdiction.
5. Term; Termination; and Effect of Termination
This Agreement is effective until terminated or, as applicable, in accordance with the term set forth in the applicable Purchase Order. Transmit Security may terminate this Agreement at any time in the event you breach any material term and fail to cure such breach within thirty (30) days. Upon termination, you shall immediately cease using the Product.
6. Warranty and Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRANSMIT SECURITY AND ITS SUPPLIERS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT, RELATED DOCUMENTATION OR INFORMATION, AND OTHER MATERIALS AND SERVICES, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. Transmit Security does not warrant that the functions contained in the Product in any update will meet the requirements of or that the operation of the Product will be uninterrupted or error free or free from errors or other program limitations.
7. Liability
a. IN NO EVENT SHALL TRANSMIT SECURITY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES OR BUSINESS OPPORTUNITIES, ARISING OUT OF THIS AGREEMENT, OR ANY SCHEDULES, EXHIBITS, OR ADDENDA THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF TRANSMIT SECURITY HAD BEEN ADVISED OF SUCH DAMAGES.
b. EXCEPT AS EXPRESSLY STATED IN THIS PARAGRAPH, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRANSMIT SECURITY’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY YOU TO TRANSMIT SECURITY PURSUANT TO THE APPLICABLE PURCHASE ORDER FOR WHICH THE CAUSE OF ACTION AROSE, DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THIS LIMIT ALSO APPLIES TO ANY OF TRANSMIT SECURITY’S AFFILIATES, SOFTWARE DEVELOPERS AND SUPPLIERS. IT IS THE MAXIMUM FOR WHICH TRANSMIT SECURITY AND ITS AFFILIATES, SOFTWARE DEVELOPERS, AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
8. Data Protection
a. Confidentiality of Personal Data. Transmit Security shall ensure that personnel which it authorizes to process personal data have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality.
b. Sub-Processors. You shall authorize Transmit Security to engage sub-processors, as described in the applicable Product documentation for the relevant Product, to process personal data. Transmit Security will:
i. impose appropriate contractual obligations upon the sub-processor that are no less protective than this Agreement.
ii. remain responsible for the sub-processor’s compliance with this Agreement and for any acts or omissions of the sub-processor that cause Transmit Security to breach any of its obligations under this Agreement.
c. Technical and Security Measures. Transmit Security shall implement and maintain all technical and organizational measures that are required for protection of the PII and ensure a level of security that is appropriate to for dealing with and protecting against any risks to the rights and freedoms of the data subjects, and as required in order to avoid accidental or unlawful destruction, loss, alteration or unauthorized disclosure of, or access to PII and/or as otherwise required pursuant to the GDPR, including, inter alia, the measures set forth below:
i. The pseudonymisation of PII.
ii. The ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services.
iii. The ability to restore the availability and access to PII in a timely manner in the event of a physical or technical incident.
iv. A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.
d. When complying with the section above, Transmit Security shall take into consideration the state of technological development existing at the time and the nature, scope, context and purposes of processing as well as the aforementioned risks.
9. General
a. Successors and Assigns. This Agreement shall bind and inure to the benefit of each party’s permitted successors and assigns. Transmit Security may assign any of its rights or obligations without prior written consent of You to a parent or successor entity.
b. Governing Law.
i. If you are located in North America, Latin America or Japan, this Agreement shall be governed by and construed in accordance with the laws of the state of New York, U.S.A., excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in the State of New York.
ii. If you are located outside North America, Latin America or Japan, this Agreement shall be governed by and construed in accordance with the laws of the State of Israel, and the sole and exclusive place of jurisdiction in any matter arising out of or in connection with this Agreement shall be the applicable courts in Tel Aviv.
iii. If you are located in Canada, any legal action or proceeding arising under this Agreement will be governed by and construed in accordance with the laws of British Columbia and the laws of Canada.
iv. The United Nations Convention on Contracts for the International Sale of Goods shall not apply
c. Force Majeure. With the exception of payment obligations, neither party shall be liable to the other party for any delay or failure in performance, to the extent such delay or failure is due to causes beyond its control. These events include but are not limited to the following: acts of nature, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems.
d. Severability and Waiver. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the parties and the remainder of this Agreement will remain in full force and effect. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
e. Survival. Sections regarding license restrictions, ownership rights, term and termination, limitations of liability, governing law and this General section shall survive the termination or expiration of this Agreement.
f. Notices. All notices shall be in writing and delivered by overnight delivery service or by certified mail sent to the address published on the respective parties’ websites or the address specified on the relevant order document (attention: Legal Department), and in each instance will be deemed given upon receipt.
