These Terms and Conditions (“Terms”) apply to all subscription order forms and other agreements ("Order Form") which incorporate these Terms and relate to your (“Customer”) subscription for the CyberDNA services from Vigilant LLC (“Vigilant”). Vigilant reserves the right to revise or otherwise modify these Terms at any time with or without notice to Customer. If revised or modified, the revised Terms will be posted on this website (the “Site”) and will thereafter be immediately effective for any Order Forms issued thereafter. The Terms and Order Form and any document executed by the Parties and incorporated into the Terms or the Order Form by reference, together, the “Agreement.”
Customer agrees to comply with the requirements of all applicable laws, rules, and regulations in connection with this Agreement. Customer represents and warrants that it will use the Services solely for lawful purposes. Vigilant reserves the right to take all actions that it believes necessary to comply with any applicable law, rule, or regulation including immediate termination of the Services without notice to Customer.
Customer acknowledges that the configuration of its environment may require Vigilant to alter the standard deployment of its Services and may affect the effectiveness or accuracy of the Services. Customer shall promptly notify Vigilant of any changes to its software, hardware, or configuration of the environment that may impact Vigilant’s performance of the Services.
Vigilant hereby grants to Customer, exercisable by and through its Authorized Users, a nonexclusive, non-sublicenseable, non-transferable and, solely for its internal business purposes and as set forth in this Agreement, right and license to use the Software and Services during the Term. Customer acknowledges and agrees that Customer is solely responsible for ensuring that Authorized Users comply with the Agreement and Customer shall be solely responsible for any breach of the Agreement due to the action or inaction of any Authorized User or of any employee, agent, customer, or contractor of Customer. Customer shall make no attempt to, and shall not permit any third party to make any attempt to: (a) remove of modify any markings or any notice of Vigilant or its licensors’ proprietary rights; (b) make the Software, Services, or any materials thereof available in any manner to any third party for use in the third party’s business operations; (c) download, reproduce, copy, republish, alter, adapt, modify, improve, translate, create derivative works from, reverse engineer any part of the Services or Software, disassemble, decompile or otherwise attempt to reveal the trade secrets, know-how, or other Intellectual Property Rights underlying the Software or Services, or access or use the Software or Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Vigilant; (d) interfere in any manner with the hosting of the Software or provision of the Services; (e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing, or otherwise commercially exploit or make the Services, Software, or related materials available to any third party; or (f) otherwise use the Services or Software not in accordance with this Agreement. Upon expiration or termination of this Agreement or the Services hereunder for any reason, Customer’s right to access or use the Software and Services shall immediately terminate.
Vigilant will assign to each Authorized User a unique password and identification name (“Authorized User Credentials”). Authorized User Credentials allow the Authorized User to access the administrative components of the Software and Services. Customer shall be responsible for ensuring the security, confidentiality, and proper use of all Authorized User Credentials. Customer acknowledges that it will be fully and solely responsible for all losses and damages arising from the use by any Authorized User (whether proper, improper, lawful, or unlawful) of the Software or Services. Customer must immediately inform Vigilant upon discovering or reasonable belief that Authorized User Credentials or any other security mechanism issued by Vigilant is lost or forgotten, has or is likely to become known to someone not authorized to use it or is being or is likely to be used in an unauthorized way. In such an event, Customer must complete such security checks as Vigilant deems appropriate. Vigilant reserves the right to suspend access to the Software and/or Services if at any time Vigilant considers that there is or is likely to be a breach of security or if Customer fails to comply with Vigilant’s instructions or requests in relation to security matters.
Vigilant may use software/hardware for the Services that are subject to shrink-wrap, click-through, on-screen, open source, or similar licensing arrangements that must be accepted during Vigilant’s performance of the Services. Vigilant shall obtain Customer’s written approval prior to accepting the terms of such agreements on behalf of Customer if acceptance of such agreement will require payment from Customer. Where applicable, Vigilant will convey to Customer the requisite license rights to software used by Vigilant to provide the Services. Customer shall either directly pay all costs of all such software/hardware, including all licensing fees, or promptly reimburse Vigilant for all such costs.
The Software and/or Services may utilize one or more open source packages. This open source software is governed by the terms and conditions of the applicable open source license, and Customer agrees that it will be bound by the terms and conditions of the applicable open source license in connection with your use and distribution of the open source software in the Software and/or Services. The open source software, the applicable open source licenses, and other open source notices will be made available upon request.
The Agreement shall commence on the Effective Date and remain in effect for the term identified in the Order Form (the “Initial Term”). If no Initial Term is identified in the Order Form, the Initial Term shall be deemed to be three (3) years from the Effective Date and shall automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either Party gives at least sixty (60) days prior written notice of cancellation to the other Party before the expiration of the then current term in effect (including the Initial Term or any Renewal Term, as the case may be). The Initial Term and any Renewal Terms, together, the “Term.”
Vigilant may terminate this Agreement immediately if in Vigilant’s sole discretion Customer misuses the Software and/or Services, engages in illegal practices, or breaches the Agreement. Customer may terminate the Agreement without penalty or fee during any trial period identified in an Order Form. Either Party may also terminate this Agreement if the other Party (i) materially breaches the terms of this Agreement and fails to cure such breach within thirty (30) days of notice from the other Party, (ii) transfers all or a substantial portion of its assets to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; or (iii) becomes subject of a voluntary or involuntary bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors if such petition or proceeding is not dismissed with prejudice within sixty (60) days after filing.
Upon and after the termination or expiration of this Agreement or any Order Form for any or no reason:
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 4, Section 6, Section 7, Section 8, Section 9, Section 10, Section 12, and Section 13.
Subject to the terms of the Agreement, Customer shall pay the fees set forth in the applicable Order Form, which shall be determined and invoiced by Vigilant in accordance with the rates, pricing and discounts set forth in the Order Form ("Fees").
All Fees and amounts set forth this Agreement are exclusive of taxes. Customer shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any governmental entity on any amounts payable by Customer under this Agreement, other than any taxes imposed on, or with respect to, Vigilant's income, revenues, gross receipts, personnel, real or personal property or other assets. The parties shall reasonably cooperate to more accurately determine each party's tax liability and to minimize such liability to the extent legally permissible.
Customer shall reimburse Vigilant for direct, documented, out-of-pocket expenses ("Reimbursable Expenses") incurred by Vigilant in performing the Services, provided that Customer shall only be obligated to reimburse Vigilant for travel and lodging expenses approved in advance by Customer.
As between Customer and Vigilant, Vigilant is and will remain the sole and exclusive owner of all right, title and interest in and to the Vigilant Materials, including all Intellectual Property Rights relating thereto, subject only to the license expressly granted to Customer in this Agreement. Except for the limited license expressly provided in this Agreement, nothing contained in this Agreement shall be construed as granting Customer or any third party any right, title, or interest in or to any Vigilant Materials, in each case whether by implication, estoppel or otherwise.
In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to the exclusions listed below, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations that is either marked, designated or otherwise identified as "confidential" or that should reasonably be understood to be confidential considering the circumstances of its disclosure. Without limiting the foregoing, (a) all Customer Information is and will remain the Confidential Information of Customer and (b) all Vigilant Materials including the Software, Specifications and Documentation are and will remain the Confidential Information of Vigilant, and (c) the terms of this Agreement are the Confidential Information of Vigilant.
Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its employees, agents, contractors, or other representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party (a) shall not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with or as expressly authorized by this Agreement, and (b) shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.
If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this paragraph, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party's obligations hereunder with respect to the Confidential Information so disclosed.
Customer shall indemnify, defend, release, and hold Vigilant and its affiliates harmless from and against any claims, actions, suits, damages, costs, or expenses (including reasonable attorneys’ fees) arising out of, resulting from, or relating to: (a) any breach of this Agreement by Customer; (b) use of Customer systems by Vigilant pursuant to this Agreement which results in the infringement of any Intellectual Property Rights; (c) the content of the data accessed or retrieved by Vigilant in connection with this Agreement, including but not limited to claims of intellectual property infringement and privacy violations; and (d) any taxes and related costs, interest, and penalties paid or payable by Vigilant except that Customer shall not be liable to the extent such costs, interest, and penalties result from Vigilant’s negligence.
If Vigilant believes or it is determined that any of the Software may have violated a third party’s Intellectual Property Rights, Vigilant may, at its sole discretion and as Customer’s sole remedy for such violation:
IN NO EVENT WILL VIGILANT BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VIGILANT’s LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES AND REIMBURSABLE EXPENSES UNDER THIS AGREEMENT IN THE one (1) YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement. (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Customer further represents, warrants, and covenants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Information so that, as received by Vigilant and used in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, any privacy, or other rights of any third party or violate any applicable law.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10, ALL SERVICES AND VIGILANT MATERIALS ARE PROVIDED "AS IS" AND VIGLANT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND VIGILANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VIGILANT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR VIGILANT MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT THE SOFTWARE OR SERVICES WILL PROTECT CUSTOMER AGAINST ALL POSSIBLE SECURITY THREATS, INCLUDING INTENTIONAL MISCONDUCT BY THIRD PARTIES OR BY CUSTOMER OR CUSTOMER’S EMPLOYEES OR AGENTS.. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Customer agrees that Vigilant is not responsible for any delays caused by Customer. Customer further recognizes that the Software and Services involve a risk of loss of or disruption to Internet services, network services, electronic communications, information, Customer Information, and data, including, but not limited to, third party access to the foregoing in a manner that may have adverse business consequences for Customer. Customer assumes all risk of loss of, or disruption to, the foregoing and hereby releases Vigilant and its Affiliates from any liability for any such loss including, but not limited to (a) the use or inability to use the Software or any system or application; (b) any infringement or claim of infringement of a copyright, patent or other intellectual property right allegedly implicated by the Software or Services or any other software acquired in connection with the Services; (c) any loss of or changes to Customer Information or other data, or the inaccuracy of Customer Information or other data; (d) the content of Customer Information; (e) delays or failures to perform any obligations hereunder due to a Force Majeure event; (f) impairments to the Services caused by acts within the control of the Customer, its employees, or its agents; (g) interoperability of specific Customer applications or systems; (h) Customer’s inability to access or interact with other providers or their services through the Internet; (i) performance impairments caused on the Internet; and/or (j) the cost of substitute goods, services, or technology.
Customer specifically acknowledges that each type of information security threat or attack presents unique challenges, not all of which are related to technology (e.g., some security breaches may be due to human factors such as an employee divulging their password), and that Vigilant cannot be responsible for monitoring or analyzing items that are not specifically outlined in the Order Form.
In no event will Vigilant be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Vigilant’s reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Customer agrees (i) that Vigilant may identify Customer as a recipient of Services and use Customer’s name and logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief Customer profile for use by Vigilant for promotional purposes on any promotional materials, including web sites and social media, owned and/or controlled by Vigilant.
Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to, in the case of Customer, the name and address or email address identified on the Order Form or, in the case of Vigilant, to email@example.com or to such other address or such other person that such party may designate from time to time in accordance with this paragraph). Notices sent in accordance with this paragraph shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Amendments; waiver. This Agreement, including all Order Forms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be amended, modified or changed only by a writing signed by both Parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event of any inconsistency between these Terms and the Order Form or between these Terms and any other documents incorporated herein by reference, the following order of precedence governs (other than an exception expressly set forth as such therein): (a) first, these Terms; (b) second, the Order Form; and (c) third, any other documents incorporated herein by reference.
Customer shall not assign, delegate, or subcontract any portion of its rights, duties, or obligations under this Agreement without the prior written consent of Vigilant. Any purported assignment in violation of this section and shall be null and void. Customer agrees that Vigilant may subcontract services to be performed in connection with this Agreement; provided that any such subcontracting arrangement will not relieve Vigilant of any of its obligations hereunder. Vigilant may assign this Agreement, including its rights and duties hereunder, without the consent of Customer.
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of the State of Ohio (without regard to the conflicts of law provisions thereof). The Parties hereby expressly consent to the exclusive jurisdiction and venue of the federal and state courts within Hamilton County, Ohio to adjudicate any dispute arising out of this Agreement, and hereby waive the affirmative defenses of lack of personal jurisdiction, lack of venue, and forum non-conveniens.
Customer irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
No third party shall be deemed a third-party beneficiary of this Agreement. Any Customer affiliate networks and threats are permitted to be monitored under this Agreement as long as the affiliate is under the Customer’s group of companies and the Affiliate’s network traffic passes through the same data pipe
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Software. Customer agrees that such export control laws govern Customer's use of the Software and Services (including technical data) and any deliverables provided under this Agreement. Customer agrees to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). Customer agrees that no data, information, software programs, and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of such laws, or will be used for any purpose prohibited by such laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Vigilant may, at its sole discretion, audit Customer’s use of the Services once per calendar year during the Term. Customer agrees to cooperate in good faith with Vigilant’s audit and provide reasonable assistance and access to all information Vigilant deems necessary to complete the audit. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees applicable to Customer’s use of the Services in excess of Customer’s rights. If Customer does not pay such fees, Vigilant can, at its sole discretion, terminate the Services and/or this Agreement. Customer agrees that Vigilant shall not be responsible for any of Customer’s costs incurred in cooperating with the audit.
The Uniform Computer Information Transactions Act does not apply to this Agreement. Customer understands that Vigilant’s business partners, including any third party firms retained by Customer to provide computer consulting services, are independent of Vigilant and are not Vigilant agents. Vigilant is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Vigilant subcontractor on an engagement ordered under this Agreement.