PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE (AS DEFINED BELOW). THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND SECPOD TECHNOLOGIES PVT. LTD. A.S., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 OF INDIA, HEREIN AFTER REFERED AS ("SECPOD"). BY ASSENTING ELECTRONICALLY, INSTALLING OR USING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
If you do not agree with the terms and conditions of this Agreement, do not continue the installation process and delete or destroy all copies of the Software in your possession. This Agreement accompanies certain software (including any upgrades or updates thereto as provided by SECPOD, the "Software") and related explanatory written materials. In this Agreement, "Documentation" means on-line explanatory information provided with the Software together with any information provided by SECPOD that lists the conditions subject to which you may use (or continue to use) the Software (the "Documentation").
SECPOD grants you a non-exclusive license (the "License") to use the Software and the Documentation for the agreed term indicated in the Documentation or applicable transaction materials made available to you at the time of your purchase of the Software (the "Service Period"), if you agree to the terms and conditions of this Agreement. These Terms are applicable during Your free trial and during Your subscription to the SOFTWARE through a Service Plan of Your choice.
Each User shall be identified using unique login information such as usernames and passwords ("User Login") and such User Login shall be used only by one individual. You are responsible for the confidentiality of Your Data and User Login. You should, therefore, not share Your User Login with any third parties. In any event, unless You notify Us of any unauthorized use or suspicious activity in Your Account, You are responsible for all activities that occur under Your Account. SECPOD will not be liable for any damage or loss that may result from Your failure to protect Your login information, including Your password. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the SOFTWARE to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the SOFTWARE or the information generated thereby is accurate or sufficient for Your purposes.
You agree not to
a. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the SOFTWARE available to any third party, other than Users and End-Customers in furtherance of Your internal business purposes as expressly permitted by these Terms;
b. use the SOFTWARE to Process data on behalf of any third party other than Your Users and End- Customers;
c. modify, adapt, or hack the SOFTWARE or otherwise attempt to gain or gain unauthorized access to the SOFTWARE or related systems or networks;
d. falsely imply any sponsorship or association with Us;
e. use the SOFTWARE in any unlawful manner, including but not limited to violation of any person's privacy rights;
f. use the SOFTWARE to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory;
g. use the SOFTWARE to store or transmit any content that infringes upon any person's intellectual property rights;
h. use the SOFTWARE to store or transmit any "protected health information" as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Us;
i. use the SOFTWARE in any manner that interferes with or disrupts the integrity or performance of the SOFTWARE and its components;
j. attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any Software making up the SOFTWARE;
k. use the SOFTWARE to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software");
l. try to use or use the SOFTWARE in violation of these Terms.
You may install and use the Software on up to the agreed number of computers indicated in the Documentation or other transaction materials made available to you at the time of your purchase of the Software (the "Permitted Computers"). The Software must be used exclusively by you or representatives of your organization.
SECPOD's central monitoring software shall be accessed over the network. SECPOD Software shall be installed on to the organization's designated user's system. You may install on any number of systems, provided such initialization is within the organization. Notwithstanding anything to the contrary, the License shall not extend beyond the license limit purchased for Permitted Computers.
Upgrades and updates of the Software shall be provided to you by SECPOD during the term of the License indicated in the Documentation or other transaction materials made available to you at the time of your purchase of the Software. You will not be entitled to receive any feature or content updates or upgrades of the Software once the license period expires, unless you renew the Service Period or purchase a new subscription.
SecPod retains all ownership rights to all applicable Proprietary Rights in the Software Product(s) and Service(s). You shall not (i) copy, modify or reproduce a Software Product or accompanying documentation in any way, (ii) reverse engineer, disassemble, or decompile a Product, (iii) remove, obscure or alter the SecPod proprietary notices or other documentation for a Software Product, (iv) incorporate a Software Product into any other software or hardware product, or (v) private label any Software Product or any portion thereof or include any other party's marks or legends on a Software Product or any portion thereof. Any documentation accompanying a software product shall also be deemed part of the Software Product and delivered to each End User as a complete Software Product.
The Software and Documentation is the intellectual property ("Proprietary Intellectual Property") of SECPOD and is protected by applicable copyright laws, international treaty provisions and other applicable laws of the country in which the Software is being used. The structure, organization and code of the Software are valuable trade secrets and confidential information of SECPOD. Comments or suggestions you provide about the Software to SECPOD, SECPOD shall have the right to retain and use any such comments or suggestions in our current or future products or services, without further compensation to you and without your approval of such retention or use. Except as stated in this Agreement, your possession, installation and use of the Software does not grant you any rights or title to any intellectual property rights in the Software or Documentation. All rights to the Software and Documentation, including all associated copyrights, patents, trade secret rights, trademarks and other intellectual property rights are reserved by SECPOD.
You agree that SECPOD Proprietary Intellectual Property is the sole property of SECPOD (or its licensor) and that SECPOD (or its licensor) will at all times retain sole and exclusive title to and ownership thereof. Nothing contained in this Agreement or otherwise shall be construed to grant you any right, title, license or other interest in, to or under any SECPOD Proprietary Intellectual Property (whether by estoppel, implication or otherwise).
You may not remove any proprietary notices on the Software; any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on and in the Software. You agree not to modify, adapt, translate, reverse engineer, de-compile or disassemble the Software or otherwise attempt to discover the source code of the Software or algorithms contained therein or create any derivative works from the Software. You are not permitted to use the Software associated with the provision of any commercial services which include processing or transferring the data of or for other persons or entities ("Data"), including cloud computing and "Software as a Service" solutions, providing storage capacities for Data; transmitting, routing of or providing connection to Data or providing information search tool services. You may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other similar arrangement.
9.1 Subscription Charges: Except during Your free trial, all charges associated with Your Account ("Subscription Charges") are due in full and payable within 30 days of SECPOD invoice, when You subscribe to the SOFTWARE. Unless specified otherwise in a Form, the Subscription Charges are based on the Service Plans You choose and are payable in full until You terminate Your Account in accordance with Section 10. You will receive a receipt upon each receipt of payment by Us. You may also obtain a payment receipt from within the SOFTWARE.
9.2 Payment methods: You may pay the Subscription Charges through Your credit card, or other accepted payment method as specified in a Form. You hereby authorize Us or Our authorized agents, as applicable, to bill Your credit card upon Your subscription to the SOFTWARE (and any renewal thereof). Your payment is due within thirty (30) days of Our invoice date unless otherwise stated in a Form.
9.3 Renewal: Your subscription to the SOFTWARE will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the SOFTWARE for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree that, unless You terminate Your Account in accordance Section 10, Your credit card will be charged automatically for the applicable Subscription Charges.
9.4 We may use a third-party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your credit card and other payment information for Us. You must notify Us of any change in Your credit card or other payment account information, either by updating Your Account or by E-mailing Us at firstname.lastname@example.org.
9.5 Refunds: Unless otherwise specified in these Terms or a Service Plan, all Subscription Charges are nonrefundable. No refunds shall be issued for partial use or non-use of the SOFTWARE by You.
9.6. Late Payments/Non-payment of Subscription Charges: We will notify You if We do not receive payment towards the Subscription Charges within the due date for Your Account. We must receive payments due within a maximum of fifteen (15) days from the date of Our notice. If We do not receive payment within the foregoing time period, We may suspend Your access to and use of the SOFTWARE until We receive Your payment towards the Subscription Charges.
9.7 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying the Taxes that would be levied against You by government authorities. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
10.1 We shall not be liable to You or any other third party for suspension or termination of Your Account or access to and use the SOFTWARE, if such suspension or termination is in accordance with these Terms.
10.2 Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the SOFTWARE if You are in violation of the Terms. We will notify You of Your activities that violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days ("Cure Period") to cure or cease such activities. If You do not cure or cease such activities within said Cure Period or if We believe that Your breach of these Terms cannot be cured, Your Account shall be terminated.
10.3 Termination by You: You may elect to terminate Your Account at any time by clicking on the 'Account Settings' link in the portal when You log in to Our SOFTWARE. You may also terminate Your Account by writing to email@example.com.
10.4 Effect of Terminating Your Account: If You terminate Your Account prior to the end of Your then-effective Subscription Term or We effect such termination, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by Us in writing. This amount will not be payable by You in the event You terminate Your subscription to the SOFTWARE or terminate Your Account as a result of a material breach of these Terms by Us, provided that You provide advance notice of such breach to Us and afford Us not less than fifteen (15) days to reasonably cure such breach.
SECPOD warrants to you that the Software will perform substantially if the subscription/License is active. If the Software does not perform substantially in accordance with the Documentation, the entire and exclusive liability of SECPOD, exclusive remedy shall be limited to, at SECPOD'S option, either (i) Replace the Software or (ii) Refund the license fee you paid for the Software. This limited warranty is void if the Software does not perform substantially in accordance with the Documentation because of any accident, abuse, alteration or misapplication of the Software by you or any third party other than SECPOD, its distributors or agents.
Be aware that the Software may make changes to your computer that may adversely affect its functionality, such as deleting system or application files identified malicious or vulnerable by the Software. You acknowledge and agree to such changes to your computer that may occur because of your use of the Software. The Software is not fault-tolerant and as such is not designed for use in hazardous environments requiring fail-safe performance.
SECPOD DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR DOCUMENTATION. THE REMEDY IN THIS SECTION STATES THE SOLE AND EXCLUSIVE REMEDIES FOR SECPOD'S BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE IS PROVIDED "AS IS" AND SECPOD MAKES NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIM ALL CONDITIONS AND WARRANTIES IMPLIED BY STATUTE, COMMON LAW OR JURISPRUDENCE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SUITABLE QUALITY OR FITNESS FOR ANY PURPOSE.
YOU AGREE AND ACCEPT THAT, TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT WILL SECPOD BE LIABLE TO YOU FOR ANY DAMAGES, ESPECIALLY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS OR LOST DATA, EVEN IF SECPOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE AND ACCEPT THAT, TO THE FULL EXTENT PERMITTED BY LAW, IN NO CASE SHALL SECPOD'S LIABILITY FOR ANY DAMAGE EXCEED THE AMOUNT OF THE LICENSE FEE YOU PAID FOR THE SOFTWARE FOR THE APPLICABLE SERVICE PERIOD.
12.1 If use of the SOFTWARE by You has become, or in Our opinion is likely to become, the subject of any IP Claim, We may at Our own option and expense (a) procure for You the right to continue using the SOFTWARE as set forth hereunder; (b) replace or modify the SOFTWARE to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the SOFTWARE and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.
12.2 Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the SOFTWARE You subscribed to infringes or misappropriates such third party's valid patent, copyright, or trademark (an "IP Claim"). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the SOFTWARE by anyone other than Us; or (iii) the combination, operation or use of the SOFTWARE with other hardware or software where the SOFTWARE would not by themselves be infringing.
12.3 Indemnification by You: You will indemnify and hold SECPOD harmless against any claim brought by a third party against Us, and their respective employees, officers, directors and agents arising from or related to use of the SOFTWARE by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notify You of the threat or notice of such a claim.
The Software reports to SECPOD the number of licenses in use by the End-User. The Software also collects and maintains information in a database. This database is hosted by SECPOD. Information collected and stored in the internal database may include personally identifiable information from the computer on which it is installed, including:
13.1 Information and files (including executable files) on your computer identified by the Software as potentially infected, together with the information about the nature of identified threats;
13.2 Certain information about your computer hardware, software and/or network connection;
13.3 Certain information about the installation and operation of the Software and encountered errors or problems;
13.4 Statistical information about threats detected by the Software; and
By using the Software, you acknowledge and agree that the Software may collect the information as described above and maintain it in an internal database hosted by you, a service provider that provides security services, or SECPOD. You are giving this consent on behalf of all users of your computers where the Software will be used under this license and you accept full responsibility for informing all users and acquiring their fully informed, free and valid consent with processing of their personal information by the Software as described above.
You agree and accept that the Software and the Documentation may be subject to import and export laws of any country. If you transfer or export the Software, which in all cases must be done in accordance with this Agreement, you agree to and acknowledge that you are exclusively responsible for complying with all applicable laws and regulations, regardless of the country in which you reside in or of which you are a citizen.
The laws of the State of Delaware, excluding its conflicts of law rules, govern this Agreement and your use of the Software and the Documentation. The State of Delaware shall be the exclusive jurisdiction and venue for any dispute or legal matter arising out of or associated with this Agreement or your use of the Software and the Documentation. Notwithstanding this, you agree that SECPOD shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
This Agreement is the entire agreement between You and SECPOD relating to the Software and Documentation. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or Documentation. Notwithstanding the foregoing, nothing in this Agreement will diminish any rights You may have under existing consumer protection legislation or other applicable laws in your jurisdiction that may not be waived by contract.
This Agreement will immediately terminate upon your breach of any obligation contained herein (especially your obligations in Sections 2 & 5, which will cause forfeiture of any rights you may have to refund of the license fee paid for the Software). SECPOD reserves the right to any other remedies available under law in the event your breach of this Agreement adversely affects SECPOD. The limitations of liability and disclaimers of warranty and damages contained herein shall survive.
17.1 Entire Agreement and Modification. This Agreement shall constitute the entire agreement between the parties and supersedes all prior agreements and understandings between the parties relating to the transactions contemplated hereby. No modification of this Agreement shall be binding, unless in writing and signed by an authorized representative of each party.
17.2 Assignment. This Agreement shall be binding upon and inure to the benefit of SecPod and its respective successors and permitted assigns. You shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without SecPod's prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
17.3 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be severed and shall not affect any other provision hereof. Furthermore, the severed provision shall be replaced by a provision, which comes closest to such severed provision, or part thereof, in language and intent, without being invalid, illegal or unenforceable.
17.4 Notice. All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt.
17.5 Applicable Law. This Agreement shall be construed under the laws of the State of Delaware without regard to its principles of conflicts of law.
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of You for access and use of any of the SOFTWARE.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the SOFTWARE provided or made available by Us to You or Your Users through the SOFTWARE or otherwise.
End-Customer: means any person or entity other than You or Your Users with whom You interact using the SOFTWARE.
Form: means any service order form referencing these Terms and executed or approved by You and Us with respect to Your subscription to the SOFTWARE.
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into the possession of the data.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
SOFTWARE: mean the Services You may subscribe to one or more of the service made available by Us. They may be subject to separate and distinct Service Plans.
Service Plan(s): means the pricing plan(s) and the functionality and services associated therewith for which You subscribe with respect to any User.
Subscription Term: means the period during which You have agreed to subscribe to the SOFTWARE with respect to any individual User.
Us: means SecPod Technologies Private Limited, a corporate registered according to the Companies Act of India, or any of its successors or assignees. In these Terms, Us may also be referred to as "We", and "Our".
User: means those who are designated users within the SOFTWARE, including an Administrators, Account administrator, other designated users.
Your Data: means all electronic data, text, messages or other materials submitted to the SOFTWARE by You through Your Account in connection with Your use of the SOFTWARE, including, without limitation, Personal Data.