CYBELANGEL TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
The Terms and Conditions (“T&C”) set forth below constitute a binding agreement between your company (“Customer”) and CybelAngel (each a “Party” and together, the “Parties”).
The Agreement describes Customer’s and CybelAngel’s rights, duties and obligations governing the conduct of our business relationship.
By undertaking a trial, examination or assessment of CybelAngel’s Services, submitting keywords, or by otherwise using the Services, Customer is agreeing to these terms.
DEFINITIONS
“Affiliate(s)” means, with respect to any Party, any other person which, directly or indirectly, owns or controls, or is owned or controlled by, or is under common control with, the specified Party. For purposes of this definition, the term “Control” (including, with correlative meanings, controlling, controlled by, and under common control with) as applied to any Party, means, directly or indirectly, the possession of at least fifty percent (50%) of voting rights or the power to elect board directors or representatives of that person by means of contractual arrangements or otherwise.
“Agreement” means the CybelAngel Terms and Conditions together with the associated Service Proposal, Service Description and Data Processing Policy, and any other agreement or document between CybelAngel and Customer that incorporates these T&C by reference. In the event of a conflict between any of these documents, the following order of authority shall apply:
(i) Service Proposal;
(ii) CybelAngel Terms and Conditions;
(iii) Data Processing Policy;
(iv) Service Description.
“Authorized User” means a natural person with access to a Customer email address who has been given access to any component of the Services by means of user credentials supplied by CybelAngel or Customer, pursuant to Customer’s authorization.
“Confidential Information” means, but is not limited to, technical, business, marketing, and financial information, as well as any other information that could reasonably be considered sensitive, confidential or proprietary to the Disclosing Party.
“Customer” means the contracting entity benefitting from the Service provided by CybelAngel.
“CybelAngel” means either CybelAngel SAS, CybelAngel USA Inc. or CybelAngel UK Ltd. Unless otherwise specified in Customer’s Service Proposal or other contractual agreement with CybelAngel, Customer’s country of incorporation will determine, as shown in the table below, the CybelAngel entity entering into the Agreement with Customer:
“Data Processing Policy” or “DPP” means the CybelAngel Data Processing Policy available at https://cybelangel.com/data-processing-policy/.
“Documentation” means all specifications, user manuals, and other technical materials relating to the Services made available to Customer by CybelAngel, including but not limited to the Service Description.
“Incident Report” means a deliverable provided to Customer:
(i) Pursuant to examination, assessment or performance of the Services;
(ii) Resulting from processes connected to CybelAngel’s business activities; or
(iii) Relating to the presence of specific criteria within monitored data sources.
“Intellectual Property Rights” refers to all intellectual property rights relating to creations of the mind, including, without limitation, patents, patent applications, and other legal rights over inventions; copyrights (including software copyrights); industrial property rights; software rights; rights in microchips and semiconductors; database rights; rights to registered and unregistered designs and design applications; as well as trademarks and trademark applications; trade secrets; and any other intellectual property rights, including rights attached to applications for such rights, globally. These rights encompass, among others, know-how, inventions, concepts, technical processes, developments, and other creations—whether patentable, protectable, or registered—algorithms, application programming interfaces (APIs), data, databases, compilations of data, project designs, schematics, documentation, drawings, flowcharts, formulas, ideas, inventions (whether patentable or not), proprietary information, media, development and marketing plans, trademarks (including trade names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, protocols, schematics, software code (in all forms, including source and object code), specifications, subroutines, techniques, uniform resource identifiers (including URLs), user interfaces, websites, applications, authored works, and other forms of technology.
“Platform” means the online CybelAngel SaaS platform, available at platform.cybelangel.com, to which Customer is given a license to access and through which CybelAngel delivers the Services.
“Professional Services” means Services where Customer engages CybelAngel to perform specific, identified tasks, either at specific dates and times, or retained for a period of time in order to perform such tasks as needed.
“Search Criteria” means keywords, data or information that Customer or Authorized Users provide to the Services or otherwise identify as search terminology or criteria. CybelAngel’s products, services, software, platform, technology stack, Documentation and any other Intellectual Property of CybelAngel, including all derivative works thereof, are not Search Criteria.
“Service Description” means the CybelAngel Service Description accessible upon request or on CybelAngel’s support platform: https://support.cybelangel.com/ (“Documentation” folder).
“Service Proposal(s)” means the agreement and any of its amendments or renewals, between CybelAngel and Customer which details the Services being provided by CybelAngel to Customers and the financial and other conditions associated with it.
“Services” means information, products and services provided by CybelAngel to Customer pursuant to the terms of agreements between the Parties or resulting from Customer’s examination, assessment, or communications with CybelAngel.
“Subscription Term” shall mean the period during which the Agreement is in effect, starting and ending on the dates specified in the applicable Service Proposal.
- TERMS OF THE SERVICES
1.1 Services. Subject to this Agreement, Customer shall have the non-exclusive, non-transferable and limited right to use the Services ordered by Customer during the applicable period set forth in Customer’s applicable Service Proposal solely for the internal business operations of Customer. Customer may allow its Authorized Users to use the Services for this purpose and Customer is responsible for its Authorized Users’ compliance with this Agreement and Customer’s applicable Service Proposal. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by CybelAngel to Customer.
1.2 Service Proposal. The Services shall be ordered by Customer pursuant to Service Proposals. Each Service Proposal shall include at a minimum a listing of the Platform, Modules Services, Yearly Usage Commit, and any Support and/or Professional Services being ordered and the associated fees. If Customer exceeds the quantity of Services ordered, then Customer promptly must purchase and pay fees for the excess quantity in accordance with the Financial Conditions set forth herein and in the applicable Service Proposal.
1.3 General Restriction. Customer shall not cause nor allow the Services to be disassembled, decompiled or reverse-engineered, to derive the source code or algorithms in the Services, or otherwise attempt to work around any technical limitation in the Services. Nor shall Customer rent, lease, loan, or sell access to the Services to any third party, interfere with or disrupt the Services or copy or otherwise reproduce, translate port, modify, or make derivative works of the Services.
1.4 Specific Restriction linked to Incident Reports. Customer shall have a limited right to access and download the Incident Reports. Subject to the condition that the Customer mentions CybelAngel as the source of the Incident Report in all internal documents in which the Incident Report is included or extracted, Customer shall have a right to use, for internal security purposes only, such downloaded Incident Reports to:
(a) Reproduce and create excerpts of such Incident Reports for use in Customer’s own internally circulated security advisory publications;
(b) Distribute such Incident Reports excerpts throughout the Customer’s internal organization for the sole purposes of gathering and assessing intelligence; and
(c) Distribute excerpts of such Incident Reports to its Affiliates and third-party consultants and contractors solely for the limited purpose of preventing, assessing or remediating any issues identified by the Services.
Customer agrees that Incident Reports are not “works for hire”, or “works made in the course of duty”, or any related terms under relevant laws implying a transfer of Intellectual Property as a result of services performed for a payor. Customer agrees that CybelAngel exclusively owns the Intellectual Property Rights to the Incident Reports.
- AUTHORIZED USERS
2.1 Customer shall:
(i) Only make the Services available to Authorized Users;
(ii) Ensure that each Authorized User only uses his or her unique username and password and that each set of these credentials is not used more than once at the same time;
(iii) Provide CybelAngel with user information and other assistance as needed to enable CybelAngel to provide Authorized Users with access to the Services;
(iv) Verify all Authorized User requests for access to the Services;
(v) Ensure that each unique username and password issued to an Authorized User shall be used only by such Authorized User; and
(vi) Maintain the confidentiality of all Authorized Users’ unique usernames and passwords.
2.2 Customer shall be solely responsible for all actions taken by persons having access to Authorized Users’ usernames and passwords and shall promptly notify CybelAngel of actual or suspected unauthorized use of any account, username, or password. CybelAngel may disable any Authorized User’s access to the Services if CybelAngel reasonably suspects that such Authorized User’s credentials may have been acquired or used by an unauthorized third party.
- SEARCH CRITERIA
3.1 Customer hereby authorizes CybelAngel to conduct searches on the Internet and other sources using the Search Criteria, to perform related technical and manual tasks in connection with performance of the Services, and to review, analyze, communicate, or perform other operations on data resulting from or relating to the foregoing activities.
3.2 Customer represents and warrants that:
(i) Customer shall use the Services solely to obtain data or information that it has the lawful right to access and possess and shall not use the Services nor provide any Search Criteria which will be used for unlawful or competitive intelligence purposes;
(ii) Customer shall ensure it has obtained all necessary notices, consents, permissions, approvals, and authorizations required for CybelAngel to process the Search Criteria and perform the Services in accordance with applicable laws and industry standards;
(iii) Customer assumes sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Search Criteria provided to CybelAngel.
3.3 CybelAngel reserves the right, in its sole discretion, to decline the use of any submitted Search Criteria. CybelAngel shall implement commercially reasonable technical, organizational, and administrative security measures to protect Search Criteria, and may retain such data in an aggregated, anonymized, and de-identified format solely for internal business purposes.
3.4 Customer retains ownership of all rights to its Search Criteria. If CybelAngel is legally required to disclose any of the Search Criteria, it shall promptly notify the Customer to the extent permitted by law.
- FINANCIAL TERMS
4.1 The Customer agrees to pay all fees as specified in the applicable Service Proposal within thirty (30) days of the invoice date, unless otherwise stated in the applicable Service Proposal. Unless explicitly stated otherwise in the Service Proposal or this Agreement, fees shall be billed on an annual basis and payable in advance by wire transfer. Once a Service Proposal has been accepted (whether by the Customer or its authorized partner or agent), it is non-cancellable, and any amounts paid are non-refundable.
4.2 Any payment not received by the due date shall incur interest at the rates in the table below, calculated on a daily basis from the due date until the date of actual payment. The rate that will apply is based on the CybelAngel Contracting Entity which is the party to the Agreement with the Customer.
4.3 All fees payable under this Agreement shall be subject to an annual adjustment which will occur every twelve (12) months. The adjustment will be the greater of (i) up to ten percent (10%) or (ii) the amount set forth on the then current index listed in the table below that corresponds to the CybelAngel Contracting Entity which is the Party to the Agreement with the Customer.
4.4 CybelAngel fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on CybelAng’s net income. If CybelAngel has the obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoices to and paid by Customer unless Customer provides CybelAngel with a valid tax exemption certificate authorized by the appropriate tax authority.
- LEGAL COMPLIANCE
5.1 CybelAngel’s data processing practices are governed by its Data Processing Policy accessible on the following URL link: https://cybelangel.com/data-processing-policy/, which is incorporated into this Agreement by reference. By accepting these Terms and Conditions, the Customer agrees to and accepts the terms of the Data Processing Policy.
5.2 Customer shall be solely responsible for its compliance with any import/export, data privacy or security breach notification laws, rules or regulations relating to Customer’s use of or access to Services. Customer shall not disclose any personal information included in the Search Criteria or in any Incident Report in contravention of the obligations set forth herein. Customer agrees that it is the “Data Controller” of all “Personal Data” (as such terms are defined in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC – General Data Protection Regulation, GDPR) contained in the Search Criteria and processed for the purpose of providing Incident Reports to Customer. Similarly, Customer agrees that it is the “Business” as that term is defined in the California Consumer Privacy Act (CCPA), responsible for the control of the purposes and means of processing personal data contained in the Search Criteria and processed for the purpose of providing Incident Reports to Customer.
- CONFIDENTIALITY
6.1 Each Party (“Receiving Party”) acknowledges that it may receive from the other Party (“Disclosing Party”) Confidential Information relating to the Disclosing Party (“Confidential Information”). Confidential Information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered sensitive, confidential or proprietary to the Disclosing Party. The terms of any agreements between the Parties (including this Agreement), the Services, any Documentation, and all technical information relating to the foregoing is Confidential Information of CybelAngel. Search Criteria are Confidential Information of Customer.
Confidential Information does not include information that:
(i) Is or becomes generally available to the public other than through a prohibited act of the Receiving Party;
(ii) Is or becomes available to the Receiving Party from a third party to the extent that such third party’s disclosure is legally permitted;
(iii) Is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or
(iv) Is disclosed by the Receiving Party with Disclosing Party’s prior written consent.
6.2 During the Subscription Term of the Agreement and following termination, the Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third party, subject to the terms of Sections 6.3 and 6.4. The Receiving Party shall use the same protective measures that the Receiving Party uses to protect its own Confidential Information, or reasonable protective measures (based on the sensitivity of relevant Confidential Information), whichever are stronger. Customer shall not disclose to any third party that information contained in an Incident Report, or related to the provision of the Services, was or has been provided by CybelAngel, nor disclose or suggest that CybelAngel is in any way responsible for Customer’s knowledge or possession of the same.
6.3 A Receiving Party may disclose the Disclosing Party’s Confidential Information to the following persons, provided that those persons undertake to observe confidentiality obligations with respect to such Confidential Information that are no less strict than those set forth herein:
(i) To its own attorneys, accountants, consultants and suppliers having a need to know; and
(ii) To investors, lenders or other sources of financing.
6.4 A Receiving Party may also disclose Confidential Information as required by law, provided that such Receiving Party provides the Disclosing Party with reasonable advance notice of such disclosure and cooperates with the Disclosing Party to seek confidential treatment of such Confidential Information, to the extent legally permitted.
6.5 All Confidential Information disclosed by the Disclosing Party shall remain its property and the Disclosing Party reserves all rights therein. Neither the Agreement nor any disclosure of Confidential Information shall operate to transfer, or operate as a grant of (except with respect to the License Grant), any Intellectual Property Rights in either Party’s Confidential Information.
- INTELLECTUAL PROPERTY RIGHTS
7.1 As between CybelAngel and Customer, all intellectual rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, CybelAngel may store and maintain Customer Data for a period of time consistent with CybelAngel’s standard business processes for the Service. Following expiration or termination of the Agreement, if applicable, CybelAngel will deactivate the application Customer account and delete any data therein in accordance with the Data Processing Policy and the timelines specified therein. Customer grants CybelAngel the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with this Agreement and the applicable Service Proposal.
7.2 All rights, title and interest in and to the Services (including without limitation all Intellectual Property rights therein and all modifications, extensions, customization, scripts or other derivative works of the Services provided or developed by CybelAngel) and anything developed or delivered by or on behalf of CybelAngel under this Agreement, are owned exclusively by CybelAngel and/or its licensors. Except as explicitly set forth herein, no agreement between the Parties (including the Agreement) shall operate to grant or transfer any ownership, license, rights, or other form of interest in the other Party’s Intellectual Property, including source code, data, Incident Reports, or other technical material.
7.3 Customer understands and agrees that any marks, trade names, logos, service marks or symbols adopted by CybelAngel to identify the Services belong exclusively to CybelAngel and/or its licensors. Any and all rights not expressly granted to Customer herein are reserved to CybelAngel and/or its licensors. CybelAngel shall retain ownership of any complete or partial back-up copies of the Documentation at all times. Customer shall not remove, modify, or obscure any patent, copyright, trademark or other proprietary notices from the Services or Documentation.
- SUBSCRIPTION TERM AND TERMINATION
8.1 The Agreement is effective as of the first date of Customer’s access to CybelAngel’s Platform or communication related to an examination or assessment of the Services, unless otherwise agreed between the Parties. Unless otherwise agreed or unless the Agreement is terminated sooner in accordance with terms of this Section 8, the Agreement shall remain effective for the duration of a Customer’s examination or assessment of the Services.
8.2 The duration of this Agreement shall be as specified in the applicable Service Proposal and will commence on the Effective Date stated therein. Unless Customer enters into a new Service Proposal or other contractual document with CybelAngel regarding the renewal of Customer’s services prior to the expiration of the initial Subscription Term or any then-current renewal Subscription Term, or if the Services subscribed are non-recurring professional services, the Subscription Term for such services shall be automatically renewed for successive one (1) year periods, at an amount not less than the fees paid or payable during the preceding twelve (12) month period. This Agreement may only be terminated by either Party through written notice of non-renewal sent via registered mail with acknowledgment of receipt at least sixty (60) days before the end of the Subscription Term specified in the Service Proposal.
8.3 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate or suspend the Agreement if the other Party commits a material breach or becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, as permitted by applicable law. A non-breaching Party may terminate for material breach if such breach remains uncured for thirty (30) days after such Party gives written notice to the breaching Party. Without prejudice to any other rights or remedies available to it, CybelAngel shall have the right to immediately terminate or suspend the Agreement and the Services, and/or to suspend Customer’s use of or access to the Services in the event of non-payment by Customer, or in the event of infringement of intellectual property or breach of confidentiality.
8.4 Upon termination of the Agreement, Customer shall suspend use of the Services including any component thereof, and CybelAngel shall immediately disable Customer’s access to the Services, including Authorized User credentials. Following termination, CybelAngel may monitor data on the Internet using the Search Criteria for internal business purposes, which monitoring shall not oblige CybelAngel to communicate any Incident Reports. Additionally, all the amounts due by the Customer to CybelAngel on the date of the termination should be paid and the termination will not lead to any reimbursement of the amounts paid to CybelAngel by the Customer.
- WARRANTIES AND REMEDIES
9.1 When named in an Incident Report, the persons who are identified as having leaked data are those believed by CybelAngel to be a likely source of such leak and any such identification represents CybelAngel’s opinion as to the same.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND CYBELANGEL AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. EXCEPT AS SET FORTH HEREIN, CYBELANGEL AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY WITH REGARD TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES, DOCUMENTATION, AND ANY OTHER PRODUCT OR SERVICES FURNISHED UNDER THE AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CYBELANGEL DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION AND CYBELANGEL GRANTS NO WARRANTY REGARDING USE OF OR RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CYBELANGEL SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- INDEMNIFICATION
10.1 EACH PARTY (“INDEMNIFYING PARTY”) SHALL, AT ITS OWN EXPENSE, DEFEND, INDEMNIFY, RELEASE AND HOLD HARMLESS THE OTHER PARTY (“INDEMNIFIED PARTY”) FROM AND AGAINST ANY THIRD PARTY ALLEGATIONS, CLAIMS, LOSSES, LIABILITIES, JUDGMENTS, PENALTIES, DAMAGES AND/OR EXPENSES (INCLUDING REASONABLE EXPENSES OF INVESTIGATION AND REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED OR SUFFERED BY THE INDEMNIFIED PARTY IN CONNECTION WITH, BASED ON, ARISING OUT OF OR RELATED TO:
(I) A BREACH BY THE INDEMNIFYING PARTY OF REPRESENTATIONS OR OBLIGATIONS HEREUNDER;
(II) WITH RESPECT TO CYBELANGEL AS INDEMNIFYING PARTY, ANY CLAIM THAT THE SERVICES VIOLATE OR INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY;
(III) WITH RESPECT TO CUSTOMER AS INDEMNIFYING PARTY, ANY CLAIM BASED ON THE USE OF THE SERVICES IN COMBINATION WITH INFORMATION, DESIGNS, SPECIFICATIONS, INSTRUCTIONS, SOFTWARE, DATA OR MATERIALS NOT FURNISHED BY CYBELANGEL AND ANY CLAIM THAT THE SEARCH CRITERIA VIOLATE OR INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10.2 CUSTOMER ACKNOWLEDGES THAT ACTIONS TAKEN IN RESPONSE TO INCIDENT REPORTS ARE NOT UNDER CYBELANGEL’S CONTROL. CUSTOMER ACCORDINGLY RELEASES AND SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS CYBELANGEL AND ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, FROM AND AGAINST ANY THIRD PARTY CLAIM BASED ON ANY LOSS, DAMAGE, SETTLEMENT, COST, EXPENSE, AND ANY OTHER LIABILITY (INCLUDING, BUT NOT LIMITED TO, REASONABLE LEGAL FEES INCURRED AND/OR THOSE NECESSARY TO SUCCESSFULLY ESTABLISH THE RIGHT TO INDEMNIFICATION) ARISING OUT OF OR RELATING TO ACTIONS TAKEN WITH RESPECT TO A THIRD PARTY IN RESPONSE TO ANY INCIDENT REPORT.
- LIMITATION OF LIABILITY
11.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT.
11.2 EXCEPT IN CASE OF FRAUD, WILFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL LOSSES ARISING OUT OR IN CONNECTION WITH THE SERVICES OR THE AGREEMENT SHALL NOT IN ANY EVENT EXCEED A SUM EQUAL TO THE LESSER OF 100% OF THE FEES PAID OR PAYABLE BY CUSTOMER TO CYBELANGEL OR A CYBELANGEL AUTHORIZED PARTNER DURING THE CALENDAR YEAR IN WHICH THE CLAIM OR FIRST IN A SERIES OF CONNECTED CLAIMS OCCURRED OR $100,000.00. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.3 Statute of limitations. Any claim, demand or remedy arising from or relating to the Services or the Agreement must be brought before the competent court within one year of the date on which the holder of the right of claim, demand or remedy knew or should have known of the facts enabling him or her to exercise it. Any claim, request or remedy lodged after this statute of limitations shall be deemed inadmissible.
- CYBER EXPOSURE REPORTS (WHERE APPLICABLE)
12.1 CybelAngel shall provide Cyber Exposure Reports (“Reports”) of a third-party target in accordance with the terms of this Agreement only after receipt of a duly executed Cyber Due Diligence Authorization for each such target, as provided by CybelAngel to Customer. CybelAngel may refuse to perform any searches or provide a Report for any specific target at its sole discretion.
12.2 Customer represents and warrants that it shall use Reports only for the bona fide purpose of conducting cyber security due diligence of a target and not for competitive intelligence or for any other purposes. Reports delivered by CybelAngel pursuant to this Agreement shall not be disclosed by Customer to any person other than Customer’s attorneys or other advisors that are bound by confidentiality obligations no less strict than those applying to Customer under this Agreement or unless otherwise required by law or court order, provided that Customer shall notify CybelAngel of any such disclosure in advance and ensure reasonable confidentiality measures are taken. Customer agrees to indemnify, defend, release and hold harmless CybelAngel from and against any third-party claim arising from Customer’s breach of the terms set forth in this Section (including legal fees or other expenses incurred for the purpose of establishing a CybelAngel’s right to indemnification).
- GENERAL PROVISIONS
13.1 Entire Agreement. This Agreement incorporates by reference URL terms (as applicable), Exhibits, Service Descriptions and Service Proposal, and this Agreement, together with such referenced items, constitute the entire understanding between Customer and CybelAngel, and are intended to be the final and entire expression of their agreement. The Agreement, the Service Proposal and all amendments thereto:
(i) Supersede all previous understandings, agreements and representations between the Parties, whether written or oral; and
(ii) Constitute the entire Agreement and understanding between the Parties with respect to the subject matter thereof.
No terms referenced by Customer in any Service Proposal, purchase order or other instrument separate from this Agreement shall be applicable to the subject matter hereof or binding as between the Parties – unless otherwise expressly agreed in writing on the Service Proposal and signed by the duly authorized representatives of each of the Parties. Except as provided for herein, neither Party makes any covenant or other commitment concerning its future action nor does either Party make any promises, representations, conditions, provisions or terms related thereto.
13.2 Independent Contractors. The Parties are independent contractors with respect to each other and nothing in the Agreement shall be interpreted to create a partnership, joint venture or agency relationship between them. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes.
13.3 Non-Solicitation of Personnel. Each Party expressly refrains from contracting for the purpose of hiring, or directly or indirectly employing any employee of the other Party acting hereunder, even if the initial approach is made by the employee. This prohibition applies during the Subscription Term of the Agreement and for twelve (12) months following its termination, for any reason whatsoever. In the event of breach of this prohibition, the defaulting Party shall immediately pay to the other Party, as a penalty clause, a lump sum indemnity equal to twelve (12) months of the last gross monthly salary of the person headhunted or recruited. However, the Customer is entitled, even during the period of validity of this Non-Solicitation clause, to solicit or hire CybelAngel employees with CybelAngel’s prior written consent.
13.4 Assignment. This Agreement shall insure to benefit and bind the parties hereto. Customer may not assign or transfer the Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, to another individual or entity. Any purported assignment or transfer derogating from such restriction shall be deemed null and void.
Notwithstanding the foregoing, either Party may assign the Agreement, by operation of law or otherwise, to a successor entity in the event of a merger, bona fide corporate reorganization or a sale of all or substantially all of its assets, stock or other equity interests, provided that the assignee shall not be a competitor of the non-assigning party.
The Agreement shall be binding upon the Parties as well as their respective successors and permitted assigns.
13.5 Modification. CybelAngel may, at any time, and in its sole discretion, modify these Terms & Conditions, including the DPP. For any modification which, in CybelAngel’s sole discretion, is material, CybelAngel will provide reasonable advance notice via email. The notice will designate a period of time after which the modifications will become effective for all customers (“Notice Period”). Customer’s continued use of the CybelAngel Platform and/or the Services following the expiration of the Notice Period constitutes Customer’s acceptance of these modified Terms.
13.6 Governing Law. The United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code, and any version of the Uniform Computer Information Transactions Act (UCITA) enacted in any jurisdiction shall not apply to this Agreement.
This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and interpreted and construed in accordance with the laws of the jurisdiction as shown in the table below based on the CybelAngel Contracting Entity which is the party to the Agreement with the Customer, without regard to any conflict of law principles that would apply another law:
13.7 Waiver. Any single or specific waiver or failure to enforce any provision of the Agreement shall not be deemed a waiver of any other provision or of the same provision at any other time.
13.8 Interpretation. If any provision of the Agreement is found to be invalid, illegal, void, unreasonable or unenforceable under applicable law, such provision shall be amended and/or interpreted to accomplish its objective and convey its intended meaning to the maximum extent possible, and all other provisions of the Agreement shall remain in effect.
13.9 Force Majeure. Any delay in a Party’s performance hereunder (except with respect to payments) shall not be considered a breach of the Agreement if such delay is beyond the reasonable control of such Party, provided that such Party uses reasonable efforts to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
13.10 Authority. Each Party represents that the person executing the Agreement is duly authorized to bind such Party hereto.
Each Party represents that the Agreement does not violate the terms of any other agreement that such Party has entered into with a third party.
13.11 Counterparts. The Agreement may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
13.12 Notices. All notices required under or regarding the Agreement will be in writing and will be considered delivered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile or electronic mail (when confirmed by recipient) or sent by courier (when confirmed by recipient).
13.13 Language. The Agreement shall be interpreted in the English language. In the event of any discrepancy between the English-language and any other version of the Agreement, the English-language version shall prevail.
13.14 Survival. All Definitions and Sections 5 through 13 shall survive termination of the Agreement.
Date : January, 2025
(End of CybelAngel Terms & Conditions)