These Terms of Service ("Agreement") govern use of the information and services provided at www.surfwatchlabs.com, or any subdomain of such domain (the "Website"). In this Agreement "Service Provider" means SurfWatch Labs, Inc., a Delaware Corporation with offices located at
SurfWatch Labs, Inc.
45610 Woodland Road
Sterling, VA 20166
Corporate Headquarters - USA
(and its successors and assigns) and "User" means you, individually, the person logging in to use the System (defined below), and, if you are making use of the System for the benefit of another person or entity, that other person or entity - for example, your employer or your client. Use of the System is subject to these terms of service, which the User agrees to by using the System. Service Provider does not consent to any use of the System, even the public / free version, unless User agrees to this Agreement.
Service Provider publishes an interactive computer service at the Website, which may include mobile applications, downloadable components and other software (collectively the "System"). The System provides computer and data security threat information and aggregates best practices news and other information in the computer and data security field, and allows Users to create account profiles, post content, provide ratings and comments, and generally to interact with other users of the System. Access to and use of premium parts of the System (the "Premium Content") may be subject to a fee, which will be clearly disclosed in one or more separate electronic order forms (the "Services Order").2. User Obligations and Acknowledgements; User Accounts and access.
Unless otherwise provided in a Services Order, User shall be solely responsible for maintaining the software and hardware located at User's site, and the communication connection for the User's system to the internet. User is also responsible for maintaining the strict confidentiality of all user names and passwords and other access credentials to keep all user names and passwords secure. The System may be accessed by linking one or more social media accounts, such as Twitter® or Facebook® ("Social Media Account(s)"). User may only link Social Media Accounts that the User legitimately has the right to use: Example - if User has the right to access a corporate Social Media Account, and User's employer has permitted such connection, the User may link that Social Media Account with the System. User represents to Service Provider that User is the rightful holder of, or has actual permission from the rightful holder of, all Social Media Accounts linked to the System.3. Access and use rights; User Provided Content and Submitted CyberFacts.
3.1 User may use the System only in accordance with and subject to this Agreement (and the Services Order) and for those portions of the System that require a subscription, only during the period of time that User has been authorized to use the System pursuant to the Services Order. User may not and covenants not to circumvent or avoid any access controls Service Provider has put in place for Premium Content.
3.2 User may elect to upload or otherwise provide text, images, videos, and other content to be displayed in the System, including Submitted CyberFacts as defined below ("User Provided Content"). User may elect to upload or otherwise provide CyberFacts using the System ("Submitted CyberFacts"). CyberFacts -- each of which includes an actor, target, effect and practice -- are standardized data that represent a negative or positive cybercrime event. With respect to User Provided Content provided by User (whether provided directly, or indirectly):
(a) User retains ownership of the User Provided Content (but not in the database, selection, or arrangement thereof), however the ownership of User Provided Content is subject to the licenses granted to Service Provider below;
(b) In addition to other representations herein, User represents and warrants to Service Provider that the User Provided Content is original to User and all User Provided Content is free of, and does not constitute an infringement of, copyright or trademark, does not misappropriate any trade secret, does not violate any contract or other obligation with a third party, does not constitute defamation, violation of a right of privacy, or violation of a right of publicity, and does not in any other way violate any third party's rights.
(c) User hereby grants to Service Provider, and its affiliates, parent companies, subsidiaries, and its and their successors and assigns, an unlimited, worldwide, non-revocable, perpetual, royalty free, transferable and sub-licensable right and license to reproduce, distribute, publicly perform, publicly display, make derivative works from, digitally transmit, adapt, use, combine, redact, modify, sell, make, import, export, transfer, revise and in any other manner make any commercial or non commercial use of such User Provided Content. For the avoidance of doubt, User acknowledges that this license granted above includes all rights to use the User Provided Content in all other forms of media, including but not limited to audio, video, film, print, newspaper, book and any other form of media known or that may be developed in the future, subject to the extent applicable, to the Submitted CyberFacts Usage Provisions herein.
(d) Service Provider may terminate access to, restrict access to specified persons or entities or groups, modify or otherwise make unavailable any or part of the User Provided Content.
(e) User waives any and all rights of attribution, integrity or any other moral or statutory right and User acknowledges and agrees that Service Provider is not required to identify User as the author or owner of the User Provided Content.
(f) If User is granted additional rights, such as a moderator, editor, or contributor, additional restrictions and representations may apply (they shall be disclosed when the User accepts the status). At a minimum, User represents that User will not engage in any act that constitutes a conflict of interest with User's employer, or that constitutes intentional discrimination against any other user of the System, whether based on race, creed, color, national origin, religious affiliation, political affiliation, gender, sexual orientation, or any other protected status, or based on other non substantive aspects of such other user's character.
(g) Submitted CyberFacts Usage Provisions - The following usage provisions govern the storage, permissions, access, replication and sanitization of Submitted CyberFacts:
3.3 User hereby grants to Service Provider an unlimited, worldwide, non- revocable, perpetual, royalty free, transferable and sub-licensable right and license to use in any media (including but not limited digital, TV, film and print) User's name, likeness, voice and other User identity aspects for any marketing or promotion of Service Provider's System, and/or in connection with the User Provided Content, subject to the extent applicable, to the Submitted CyberFacts Usage Provisions herein.3.4 Pricing
(a) Charges. Access to the System according to the Access and Use Rights defined herein ("Service") is offered for free for a limited time and for a limited amount of data ("Trial"). In the event that Service Provider decides to charge for the Service or place limits on the Service, the Service Provider will notify you of these Additional Terms. If you choose to utilize a Service that requires a fee, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the term of your use, whether or not the licenses are used. If you choose to utilize a Service that requires a fee, you may be required to provide Service Provider with a valid credit card as a condition to signing up for the Service.
(b) Billing. Service Provider shall be entitled to withhold performance and discontinue access to the Service until all amounts due are paid in full. Company's fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on Service Provider's income. If you choose to utilize a Service that requires a fee, you agree to provide Service Provider with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Service Provider may terminate your access to the Service in addition to any other legal remedies.4. Limitations on Uses of Data generated from the System.
The System is comprised of the software that operates the system (the "Software") and the data and content residing in the System that may include links, text, images, video and other content, including User Provided Content (the "Content"). All data and content in the System is owned (or licensed) by Service Provider, and, except with respect to User Provided Content is licensed to User to use in connection with use of the System - the scope of that license includes only the following rights - all other rights are expressly reserved to Service Provider, and User is expressly not permitted to use the Content in any manner not expressly permitted below or as provided in a Services Order:
4.1 User may view the Content on a standard computer display device using a standard human operated computer browser (e.g. IE, Opera, Safari, Firefox etc). Except for (a) internal business use by User in User's own company or business and in accordance with a Services Order if applicable; and (b) the automatic caching performed by a standard computer device and standard human operated browser, User may not use any screen capture, screen scrape, camera, videocamera or other tool to take a snapshot or video of the screen generated on standard display devices or to otherwise record or save the Content.
4.2 Some functionality of the System may allow the User to download some of the Content in the form of reports or other pre-formatted files (e.g. CSV, TXT, PDF, DOC, XLS etc) (the "Downloaded Content"). User may only use the tools and functions in the user interface of the System, and in the standard browser (i.e. no direct access to any Content – access must come solely through the Service Provider provided user interface or the browser functionality). There is no right to download or use any Software, except as it may be downloaded or used within the normal operation of the browser. All Downloaded Content may be used only by User, or within User's company or business, but subject to any other restrictions thereon as may be provided in a Services Order or disclosed in connection with the tool used to obtain the Downloaded Content.
4.3 User may modify, append or redact the Content to the extent included in the Downloaded Content, only so long as the modified/appended/redacted Downloaded Content is used solely and exclusively for the personal use of User, or internal business purposes of User's employer/client, if User is accessing the System for an entity. For the avoidance of doubt, the following acts are not permitted either for personal or internal business use: (a) reselling or redistributing in any manner the Content or Downloaded Content; (b) except as permitted in Section 4.4, using the Content or Downloaded Content to provide information or services to a third party, client, customer or similar person; (c) publishing the Content or Downloaded Content for public view in any manner, whether electronically or in paper/hard copy/print format.
4.4 If a Services Order permits User to access and use the Content or Downloaded Content for the purpose of providing services to such User's customers or clients, and so long as User is not in breach of such Services Order and complies with any restrictions therein, User may engage in any of the acts permitted in Sections 4.1 through 4.3 and include User's customer's or clients in such distribution or use. Content and Downloaded Content must retain all proprietary markings and notices and such client/customer is prohibited from further re-distributing or publicly displaying such Content and Downloaded Content, unless otherwise specifically permitted by applicable law. For the avoidance of doubt, unless the Services Order permits unlimited customer/client use, User will be required to identify a specific client or customer, and may only use the Content or Downloaded Content under that Services Order solely for that identified client or customer.
4.5 Security and Backups. Service Provider reserves the right to establish or modify its general practices and limits relating to the data limits of User Provided Content. Service Provider shall provide logical and physical security to ensure the logical and physical security of its equipment and User Provided Content. During the Term, Service Provider shall use commercially reasonable efforts to protect User Provided Content behind a secure firewall system.
4.6 Content Loss. You represent and warrant that you shall keep and maintain your own copy of all User Provided Content that is provided to the Service and Service Provider. Service Provider is not obligated to back up any User Provided Content that is posted on the Service. Service Provider therefore recommends that you create backup copies of any User Provided Content posted on the Service at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this section constitutes improper and unauthorized use of the Service. You agree that Service Provider may (but has no obligation to), in Company's sole discretion, remove or modify any User Provided Content which it deems to violate your representations and warranties in this section. ANY DATA YOU UPLOAD OR ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR USAGE OF THE SERVICE WILL BE PERMANENTLY LOST IF YOU ALLOW YOUR ACCOUNT TO EXPIRE. YOUR ACCOUNT MAY EXPIRE IF IT IS NOT USED OR ACCESSED DURING ANY CONTIGUOUS 60 DAY PERIOD, UNLESS YOU HAVE PAID NON-EXPIRED CREDITS IN YOUR ACCOUNT. IF YOU ALLOW YOUR ACCOUNT TO EXPIRE YOUR DATA WILL BE PERMANENTLY LOST.5. Non-exhaustive prohibited uses.
For the avoidance of doubt, but without intending to or actually limiting the reservation of rights herein, unless specifically permitted herein or in a Services Order, User may not (and User covenants not to): (a) share or permit others to use the User's access credentials to the System; (b) provide remote access, co-screen access, or other dual or multiparty access to User's screen when accessing or using the System; (c) use the Content or Downloaded Content to provide a service bureau or other similar service; (d) use services such as GotoMeeting, Webex, Teamviewer, LogMeIn, GotoWebinar or other similar services to provide multiparty access to, or to provide seminars or training with, the System, Content or Downloaded Content; (e) print the Content or Downloaded Content (other than for personal or internal business use as permitted in Sections 4.3 and 4.4); (f) merge the Content or Downloaded Content with any other data or content of User; or (g) engage in any of the acts proscribed in the Acceptable Use Policy [www.surfwatchlabs.com/terms] which is incorporated herein by reference.
5.1 YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.6. Ownership Acknowledgment.
All rights and property interests, including but not limited to patents, copyrights, trade secrets, trademarks and other proprietary rights recognized under applicable law in or relating to the System and all Software and Content (except the User Provided Content) and all modifications, adaptation, derivative works and enhancements thereto, are owned exclusively by Service Provider and/or its licensors, and all such rights not expressly granted herein are reserved to Service Provider. Notwithstanding the above, Service Provider shall not acquire through this Agreement any ownership interest in User's personal information (defined herein to be User's email address, regular address, phone and fax number, and any payment information relating to User).7.1 Trademarks.
No party will use in any manner the trademarks or servicemarks ("Marks") of the other party without the express written permission of such other party, which consent may be withheld in the sole and absolute discretion of such other party. Notwithstanding the above, either party may publicly display, copy or reproduce the Marks of the other party solely in accordance with the purpose and intent of this Agreement or to meet its obligations hereunder or under the Services Order and Service Provider may identify User as a user of the System; provided however that neither party shall alter, modify or revise any Mark of the other party without its written permission.7.2 Copyright Policy.
Company reserves the right to terminate its agreement with any customer who infringes third party copyright rights upon prompt notification to Company by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Service in a way that constitutes copyright infringement, you shall provide Company with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Service of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf.8. Termination.
All rights to use the System, Content (other than the User Provided Content), Software and Downloaded Content shall immediately terminate upon termination or expiration of this Agreement. Upon any termination or expiration of this Agreement User shall immediately return to Service Provider or at Service Provider's written election, destroy copies of, all Content (other than the User Provided Content) and Downloaded Content and all of Service Provider's Confidential Information ("Confidential Information" means non-public information of Service Provider; by example and not limitation, Confidential Information of Service Provider includes the System, all Software provided in connection with the System, any and all results of tests of the System, and all communications between the parties concerning or relating to the System, all user names and passwords for accessing the System, the documentation, and all amendments, enhancements and derivative works to the System). User shall provide to Service Provider a signed written statement under oath certifying that he or she has returned or destroyed all of the Confidential Information of Service Provider and that such User does not retain in its possession any copies of the Service Provider's Confidential Information in hardcopy or electronic format. The confidentiality and security obligations of this Agreement shall survive termination and continue in perpetuity as to all such retained Confidential Information. The provisions of Sections 2, 3.2, 3.3, and 4 through and including 17 shall continue and survive in full force and effect to the extent so provided therein.
User (in this section "Recipient") may have access to trade secrets and Confidential Information of Service Provider (in this Section "Discloser"). Recipient agrees to hold the Confidential Information disclosed by Discloser in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer such Confidential Information to any third party or utilize such Confidential Information for any purpose whatsoever other than as expressly contemplated by this Agreement. The obligations herein shall continue for so long as such information is not held by a court of competent jurisdiction (in a final and unappealable order) to either: (a) fall within the provisions of Section 10.2 or (b) no longer constitute a trade secret under applicable law. Each party shall keep confidential the terms and conditions of this Agreement, but may make general statements publicizing the fact that the parties have entered into this Agreement. Notwithstanding the above, upon prior written notice to Discloser, Recipient may disclose Discloser's Confidential Information if, upon advice of counsel, such disclosure is required by a subpoena, court order or other compulsion of law (in which case Recipient will cooperate with Discloser to the extent reasonable to preserve the Confidential Information from public disclosure beyond that necessary in such proceeding).10.2 Exceptions.
The above confidentiality obligations shall not apply to Confidential Information if and to the extent that Recipient establishes that the information communicated: (i) was already known to Recipient, without obligation to keep such information confidential, at the time of Recipient's receipt from Discloser, as evidenced by documents in the possession of Recipient prepared or received prior to such communication; (ii) was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) was publicly known at the time of Recipient's receipt from Discloser or has become publicly known other than by a breach of the Agreement; or (iv) prior to Recipient's disclosure of such information, such disclosure was consented to in writing by Discloser. Unless otherwise designated and unless falling under this paragraph, all information transmitted between the parties (other than User's personal information) shall be presumed to be Confidential Information.10.3 Security Measures.
Without limiting the obligations specified above, Recipient agrees to implement the following security steps in order to protect the confidentiality and security of Confidential Information of Discloser: (i) implement internal procedures to limit, control and supervise the use of Discloser's Confidential Information; (ii) make Discloser's Confidential Information available only to Recipient's employees, agents and contractors who comply with the non-disclosure obligations set forth herein; (iii) notify Discloser in writing of any suspected or known breach of the obligations and/or restrictions set forth herein; and (iv) use those security procedures it uses for its own Confidential Information which it protects against unauthorized disclosure, appropriation or use, but not less than reasonable security procedures.
Except as otherwise restricted by this Agreement or in a Services Order, Service Provider may use or disclose User Confidential Information and User's personal information to provide services to User solely for the following purposes: (i) to provide the services associated with the System to User under this Agreement; (ii) for proper management and administration of Service Provider's business or to carry out its legal responsibilities; provided that such disclosure is required by law or Service Provider obtains reasonable assurances from the person to whom disclosure is made that such information will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed and such person notifies the Service Provider of any instances of which he/she is aware in which the confidentiality of such information has been breached; (iii) to provide de-identified data aggregation and benchmarking services; and (iv) otherwise as permitted or required by applicable law.11.3 De-identified data.
For the avoidance of doubt, Service Provider has no duty to User, and may freely use without payment or liability to User or anyone claiming by or through User, all information that does not identify an individual or business, which by way of example and not limitation, includes aggregated data and information and de-identified data and information.
Each party warrants and/or covenants that: (i) it has the power and authority to execute and deliver this Agreement and has taken all necessary corporate action to authorize the execution and delivery of this Agreement; and (ii) this Agreement is and shall be the legal, valid and binding obligation of such party, enforceable in accordance with its terms.12.2 User.
User covenants that User shall: (i) timely and fully perform its obligations under this Agreement; (ii) use the System and all Content, Downloaded Content and Software in compliance with all applicable federal and state laws, rules and regulations; (iii) comply with all documentation provided by Service Provider; (iv) not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble or decompile the System or any portion thereof; (v) make no representations to third parties regarding the System or Service Provider's services that are not expressly authorized to be made in this Agreement; (vi) not use Service Provider's Marks in any manner except as permitted under this Agreement; and (vii) cooperate with Service Provider in its provision of the System including providing such technical assistance and information as reasonably requested by Service Provider.12.3 Disclaimer.
OTHER THAN AS EXPRESSLY SET FORTH HEREIN, SERVICE PROVIDER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER ORAL OR WRITTEN, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING UNDER ANY APPLICABLE UNIFORM COMPUTER INFORMATION TRANSACTION ACT. THERE IS NO WARRANTY THAT THE SYSTEM OR ANY EFFORTS OR INFORMATION PROVIDED BY SERVICE PROVIDER WILL FULFILL ANY OF USER'S PARTICULAR PURPOSES OR NEEDS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION OR CONTENT PROVIDED BY USER OR THIRD PARTIES FOR OR VIA THE SYSTEM NOR FOR ANY INACCURATE RESULTS DUE TO SERVICE PROVIDER'S PROCESSING OF ANY SUCH DATA. SERVICE PROVIDER MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS OF DELIVERY OF THE SYSTEM TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED BY.
User agrees to and does hereby indemnify, defend and hold harmless Service Provider and its subsidiaries, associated companies, employees and agents from and against any and all damage, liability, cost and expense (including reasonable attorneys' fees) incurred as a result of a third party claim arising from: (i) violation of applicable laws by User or User's agents; (ii) negligent or intentional acts or omissions of User or User's agents; (iii) User Provided Content, or (iv) material breach of any term, condition, representation, warranty or other provision of this Agreement by User or any of User's agents.13.2 Exception and Notice.
Neither party shall be liable to the other party to the extent that such other party has incurred any liability to a third party as a result of its own material breach of this Agreement, negligence or intentional misconduct.
14.1 SUBJECT TO SECTION 14.3 BELOW: (i) THE SOLE REMEDY IN THE EVENT OF A CLAIM BY USER (OR ANY PERSON CLAIMING BY, WITH OR THROUGH USER) AGAINST SERVICE PROVIDER, ITS SUBSIDIARIES AND/OR ASSOCIATED COMPANIES, OWNERS, DIRECTORS AND OTHER AGENTS FOR BREACH OF THIS AGREEMENT SHALL BE FOR SERVICE PROVIDER TO REPAIR, REPLACE OR OTHERWISE CORRECT THE SYSTEM; AND (ii) IN NO EVENT WILL SERVICE PROVIDER, ITS SUBSIDIARIES AND/OR ASSOCIATED COMPANIES, BE LIABLE TO USER UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE LESSER OF THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $500; AND (iii) IN NO EVENT WILL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE FOR ANY DAMAGES OF ANY KIND TO ANYONE OTHER THAN USER UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION.
14.2 SUBJECT TO SECTION 14.3 BELOW, IN NO EVENT WILL SERVICE PROVIDER, ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE TO USER OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SYSTEM OR ANY PORTION THEREOF, LOSS OF DATA, FALSE OR ERRONEOUS INFORMATION TRANSMITTED VIA THE INTERNET OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.14.3 Exceptions.
The limitations of liability set forth in Sections 14.1 and 14.2 above shall not apply where Service Provider has engaged in deliberate and willful misconduct specifically intending to harm User. Notwithstanding any other provisions no liability of Service Provider shall arise for failure to provide the System if due to any cause beyond Service Provider's reasonable control.14.4 Limited claim period.
No action arising out of this Agreement, regardless of form, may be brought by either party or any third party more than one (1) year after the date the cause of action accrued.
Except for solely equitable claims which may be pursued immediately and directly in court, all claims by a party for breach of this Agreement that are not resolved by mutual written agreement shall be settled by binding arbitration before a single arbitrator under the rules of the American Arbitration Association. The location of such arbitration shall be in the Commonwealth of Virginia at a location determined by the arbitrator(s). The parties shall mutually agree on an arbitrator or if they cannot, the arbitrator shall be appointed under the rules of the American Arbitration Association. Arbitration may be commenced by either party by giving written notice to the other party that the dispute has been referred to arbitration under this Section. Any award rendered by the arbitrator shall be conclusive and binding upon the parties, provided that any such award shall be accompanied by a written opinion giving the reasons for the award. This Section shall be specifically enforceable by the parties and the decision of the arbitrator may be filed under the Federal Arbitration Act or any equivalent state arbitration act as an award of arbitration and shall be a judgment of record in such court; provided however, that either party may appeal the decision of the arbitrator as if such decision had been rendered by such court sitting without a jury, subject to all court rules and procedures for collection and stay of judgment. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared, subject to Section 17.1 below. In all cases each of the parties IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A DEMAND A TRIAL BY JURY of any claim arising out of or related to this Agreement or the performance or non performance of either party.
This Agreement has been made, executed and delivered in the Commonwealth of Virginia, USA. The parties mutually stipulate and agree that this Agreement is in all respects (including, but not limited to, all matters of interpretation, validity, performance and breach) to be exclusively construed, governed and enforced in accordance with the laws of the Commonwealth of Virginia and all applicable federal laws of the United States of America, as from time to time amended and in effect. The parties agree that the Uniform Commercial Code - Article 2 Sales and the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. In any litigation or arbitration between the parties, the prevailing party shall be entitled to reimbursement of its costs, and the court or arbitrator shall award, as costs, reimbursement of such party's reasonable attorneys' fees and other reasonable professional fees.17.2 Relationship of the Parties.
Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed to constitute a partnership or joint venture between the parties or be deemed to constitute one party as agent of the other, for any purpose whatever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with third parties, and each party shall take no action, directly or indirectly, which may prevent or hinder the other party from fulfilling its obligations to third parties.17.3 Relief.
Each party acknowledges that any violation of the confidentiality, intellectual property of this Agreement will cause irreparable injury to the other party. Therefore, in addition to any other available remedies and damages, such other party shall be entitled to an injunction to restrain the violation thereof by the breaching party, its subsidiaries, agents, servants, employees and all personnel acting for or with it (without the requirement to post a bond or security). Nothing herein shall be construed as prohibiting a non-breaching party from pursuing any other available remedy for breach or threatened breach of this Agreement, including actual damages and reasonable attorney's fees.17.4 Assignment.
Either party may assign this Agreement at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror or other entity that purchases or obtains substantially all of the assets or stock of such party, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement in the place of such party and is not a competitor to the other party. Except as set forth above, User may not assign or delegate this Agreement without Service Provider's prior written consent, which shall not be unreasonably withheld.17.5 Notice.
All written communications between the parties shall be sent by First Class Mail or recognized courier, properly prepaid and sent to the addresses specified in this Agreement, or by electronic mail or facsimile. All such communications shall be deemed received upon the earlier of: (i) actual receipt or actual delivery to the address specified in accordance with this Agreement; (ii) three days after notice is deposited in a proper mail receptacle; or (iii) upon receipt by the transmitting party of confirmation or answer-back (if delivery is by facsimile or electronic mail). By written communication, either party may designate different contact information for purposes hereof.17.6 Entire Agreement; Amendments; order of preference.
This Agreement may be signed in counterparts, each of which shall be deemed an original and which shall together constitute the entire Agreement. This Agreement, all documents referenced herein, any Order form, and all other written and signed agreements between the parties represent the entire understanding between the parties with respect to the subject matter hereof and supersede all other prior written or oral agreements between the parties with respect to the subject matter hereof. In the event of a conflict between this Agreement and any other written and signed agreement, the agreement that is signed in original ink form shall control over this Agreement. Any waiver or modification of this Agreement will not be effective unless made in writing and signed by the authorized representatives of the parties. In the event of any direct conflict between the terms and conditions of this Agreement and any document referenced herein or any Exhibit, the terms of this Agreement shall control.17.7 Force Majeure.
If either party's performance of this Agreement, other than the payment of monies, is prevented, restricted or interfered with by reason of Force Majeure, such party shall, upon giving prior written notice to the other party, be excused from performance to the extent of the Force Majeure, provided that the party so affected shall use its best efforts to avoid or remove the causes of Force Majeure, and shall continue performance hereunder with the utmost dispatch whenever the Force Majeure is removed. Notwithstanding the foregoing, if the Force Majeure continues for a period of one hundred eighty (180) calendar days or more, the unaffected party may, on written notice to the party affected, terminate this Agreement, and neither party shall have any further obligation to the other save for payment of all monies due and payable and for those provisions hereunder which survive termination of this Agreement.17.8 Severability.
If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.17.9 Electronic contracting.
Both parties expressly consent to transacting business electronically in accordance with the Commonwealth of Virginia Uniform Electronic Transactions Act.17.10 Changes to Terms.
Service Provider reserves the right to modify this agreement at any time. If Service Provider does so, Service Provider will provide a notice on the System. Immaterial corrections and changes shall be effective upon the modification; if the changes are material to User, and User disagrees with such changes, User will have an opportunity to cease using the System (and if User is accessing Premium Content, to terminate such subscription to the Premium Content but User will be responsible for any fees that User would have normally incurred until the effective date of such termination) and such new of changed terms shall not apply to User. Continued use of the System after the changes have been posted is acceptance of the changed terms and conditions.17.11 Export.
Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.17.12 Local Laws.
Company and its suppliers make no representation that the Service is appropriate or available for use in locations other than the United States. If you use the Service from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.
ACCEPTABLE USE OF SERVICE. You agree as follows in respect of the acceptable and unacceptable uses of the System (as defined in the Terms of Service). You will not and agree not to:
a. Use or attempt to use the System for any illegal, abusive or unethical activities as determined by us in our sole discretion, which include by example and not limitation, transmission of illegal pornographic material, invasion of privacy, defamation, infringement of another person's copyright, trade secret, patent, trademark or other intellectual property rights, hacking or cracking (gaining unauthorized use of a computer), distributing computer viruses or other malware, gambling, harassment of another or distribution of other harmful materials, code, programs or scripts.
b. Send unsolicited bulk mail messages ("junk mail" or "spam"). This includes bulk-mailing of commercial advertising, information announcements, charitable solicitations and political solicitations. Such material may only be sent to those who have specifically requested it or as authorized by applicable law, provided that if you assert that your activities are authorized by applicable law, you shall provide an opinion of reputable counsel establishing a basis upon which your actions are taken. Malicious or threatening e-mail is also prohibited. Normally we will assume that you are in compliance with this provision, however, if an upstream provider blacklists our IP range or mail server as a result of activities we trace to you, we will presume that you are in violation of this provision.
c. Breach any applicable data protection statute by, for example, sending or storing personal information (as defined in applicable data protection statutes) in an unencrypted form.
d. Impersonate another person, falsify the source of TCP/IP packets, spoof any portion of an email or TCP/IP header, or misrepresent authorization to act on behalf of others or us. All messages and packets transmitted via the Internet Service should correctly identify the sender and source; you may not alter the attribution of origin in electronic mail messages or posting.
e. Undermine the security or integrity of computing systems or networks or gain unauthorized access or control over our computers or any other person's computers.
f. Permit another person to use your resources or the System to conduct any of the matters you are prohibited from doing.
g. Distribute any files in any peer-to-peer or file sharing arrangement, where it is possible that in such file sharing process any of the System may be used to distribute copyrighted materials to or from persons who are not authorized to receive, copy, distribute or use them.
h. Take any action that would cause us to violate any terms of an upstream service provider's acceptable use policy.
i. Engage in any activity disruptive or abusive towards our members or to System operations, including and not limited to:
The above list of acceptable and unacceptable uses of the System is not intended to be exhaustive, but rather illustrative of the range of unacceptable uses. We have the right in our sole discretion to determine whether any particular conduct is an acceptable use of the System. In cases where we determine you engaged in conduct that you reasonably believed did not violate this policy in good faith, we will provide you electronic notice of our determination that such conduct is not an acceptable use, and provided you cease such conduct not later than 24 hours after such notice, you will not be considered to be in breach of this Agreement.
All software submissions to SurfWatch Labs, Inc remain owned by you, however, by submitting your entry, you hereby grant to SurfWatch Labs, Inc. a perpetual, non-revocable, royalty free, transferable, assignable and sub licensable right and license to make, use, sell, have made, have sold, modify, reproduce, distribute, publicly display and perform, make derivative works from, make derivate patents from, and otherwise use and commercialize the submissions, and all patent, copyright, trademark, trade secret (if any) and other proprietary rights embodied therein. You also represent and warrant to SurfWatch Labs, Inc. that your submission is your original work, and does not violate any third party contractual rights, does not infringe or misappropriate any third party copyright or trade secret rights, and to your actual knowledge on the date of submission, does not infringe any third party patent rights. Except as modified above, the SurfWatch Labs Terms of Service apply to your submission.
All subscription services purchased on surfwatchlabs.com are non refundable. If You terminate Your subscription service, subject to Your compliance with the Terms of Service, You will continue to have access to the SurfWatch Labs service through the period that you have a paid up subscription. Except as may be expressly prohibited by applicable law, You agree not to charge back any credit card authorization you actually provided, and You agree to pay all costs, fees and expenses, including any reasonable legal fees SurfWatch Labs incurs, to recover any charge back or other fees caused by Your actions.
Date of last revision: 13 February 2015