PLEASE READ THESE TERMS & CONDITIONS CAREFULLY
The terms and conditions (“T&C”) set forth below constitute an 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.
“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 Protection Policy, and any other agreement or document between CybelAngel and Customer that incorporates these T&C by reference.
“Alert” or “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.
“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.
“Data Protection Policy” means the CybelAngel Data Protection 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.
“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, apps, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
“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” means the agreement 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.
- License Grant
1.1 CybelAngel Platform. CybelAngel hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to assess, use and access the Services in accordance with this Agreement, the Documentation and any other agreements executed between the Parties, as applicable, and to use and make copies of the Documentation for the foregoing purposes only (“License Grant”). Customer agrees, on its own behalf and on behalf of all Authorized Users, to exercise the foregoing license grant solely for its internal business purposes and solely for Customer’s benefit.
1.2 Incident Reports. Incident Reports are not “works for hire,” or “works made in the course of duty,” or any related terms under relevant laws implying the transfer of intellectual property occurs following services performed for a payor. CybelAngel hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and download the Incident Reports. CybelAngel hereby grants Customer a right to use for internal 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. Such right to reproduce or create excerpts is subject to Customer crediting CybelAngel as the source of the Incident Report in all internal documents in which the Incident Report is included or excerpted. Customer agrees that CybelAngel exclusively owns the Intellectual Property Rights to the Incident Reports
1.3. 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 Customer hereby authorizes CybelAngel to conduct Internet and other searches using Search Criteria, to perform 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. Customer represents and warrants that it shall use the Services only to obtain data or information that Customer has the right to possess and that Customer shall not use the Services for illegitimate, unlawful or competitive intelligence purposes.
- Authorized Users
2.1 Customer shall (i) 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; (ii) provide CybelAngel with user information and other assistance as needed to enable CybelAngel to provide Authorized Users with access to the Services; (iii) verify all Authorized User requests for access to the Services; (iv) ensure that each unique username and password issued to an Authorized User shall be used only by such Authorized User; and (v) maintain the confidentiality of all Authorized Users’ unique usernames and passwords.
2.2 Customer shall only make the Services available to Authorized Users. 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 represents and warrants that Customer has and shall have all notices, consents, permissions, approvals, authorizations, rights of access and licenses to the Search Criteria as are reasonably required for CybelAngel to perform the Services. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Search Criteria. CybelAngel may, at its sole discretion and on a case-by-case basis, decline to use any Search Criteria submitted by Customer and shall use commercially reasonable technical, organizational and administrative security measures to keep Search Criteria protected, in accordance with generally accepted industry standards. CybelAngel may retain Search Criteria related to performance of the Services for internal business purposes in an aggregated, anonymized and de-identified manner.
3.2 Customer shall retain all rights to its Search Criteria. If CybelAngel is required to disclose Search Criteria pursuant to applicable law or the lawful order of a court or governmental authority, CybelAngel shall notify Customer of any such disclosure to the extent permitted by law and as soon as CybelAngel is permitted to do so.
- Legal Compliance
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 Alert 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 GDPR) contained in the Search Criteria and processed for the purpose of providing Alerts to Customer. Similarly, Customer agrees that it is the “Business” as that term is defined in the 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 Alerts to Customer.
5.1 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 (iv) is disclosed by the Receiving Party with Disclosing Party’s prior written consent.
5.2 During the 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 Section 5.3. The Receiving Party shall use the same protective measures that 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 Alert, 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 same.
5.3 A Receiving Party may disclose Disclosing Party’s Confidential Information (i) to its own attorneys, accountants, consultants and suppliers having a need to know; (ii) to investors, lenders or other sources of financing, in each case subject to such persons undertaking confidentiality obligations with respect to such Confidential Information that are no less strict than those set forth herein. A Receiving Party may also disclose Confidential Information as required by law, provided that such Receiving Party provides 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. All Confidential Information disclosed by 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
6.1 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.
6.2 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.
- Term and Termination.
7.1 The Agreement is effective as of the first date of Customer’s access to CybelAngel’s website 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 7, the Agreement shall remain effective for the duration of a Customer’s examination or assessment of the Services.
7.2 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 right or remedy available to it, CybelAngel shall have the right to terminate or suspend the Agreement, the Services, and/or to suspend Customer’s use of or access to the Services in the event of non-payment by Customer.
7.3 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 Alerts.
- Warranties and Remedies
8.1 When named in an Alert, 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.
8.2 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 ABOVE, 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.
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.
CUSTOMER ACKNOWLEDGES THAT ACTIONS TAKEN IN RESPONSE TO ALERTS 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 AN ALERT.
- Limitation of Liability
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.
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 GREATER 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. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Cyber Exposure Reports (where applicable)
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. 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. 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 Terms.
12.1 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.
12.2 Assignment. Neither Party may assign or transfer the Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party. 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. The Agreement shall be binding upon the Parties as well as their respective successors and permitted assigns.
12.3 Modification. This Agreement shall not be changed, modified, terminated, or discharged, in whole or in part, except by an instrument in writing signed by both parties hereto, or their respective successors or assignees.
12.4 Governing Law. Neither the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code nor any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction shall govern the 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, without regard to any conflict of law principles that would apply another law.
|New York County, New York
|England and Wales
|Commercial Court of Paris
12.5 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 same provision at any other time.
12.6 Interpretation. If any provision of the Agreement is found to be 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.
12.7 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.
12.8 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.
12.9 Counterparts. The Agreement may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
12.10 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).
12.11 Entire Agreement. The Agreement, the Service Proposal and all amendments thereto, (i) supersede all previous understandings, agreements and representations between the parties, written or oral; (ii) constitute the entire agreement and understanding between the parties with respect to the subject matter thereof. No terms referenced by Customer in any order form, purchase order or other instrument separate from this Agreement shall be applicable to the subject matter hereof or binding as between 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.
12.12 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 govern.
12.13 Survival. All Definitions and Sections 4 through 12 shall survive termination of the Agreement.
Date : November, 2023
(End of CybelAngel Terms & Conditions)