End User License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE ZERO TRUST ISOLATION PLATFORM.
Airgap Networks - End User License Agreement
Last updated: January 18, 2022
1. Acceptance of Terms.
a. The Airgap the Zero Trust Isolation Platform including the Zero Trust Isolation Software, any associated software, media, printed or electronic documentation, and updates for the software (collectively, the “Platform”) are provided, operated and owned by Airgap Networks Inc., a Delaware corporation (”Airgap”, ”us”, ”we” and ”our”).
b. By clicking “I Agree” below and/or when you first install the Platform, you agree to be bound by the provisions of this end user license agreement (“EULA” or “Agreement”).
c. “Customer” or “You” throughout this EULA means the user of the Platform. However, if you are using the Platform on behalf of an entity or organization (or in the course of your employment with such an entity), then you warrant that you are authorized by the said entity to enter into legal agreements on the entity’s behalf, and then both you and the entity enter into this agreement and are liable for your strict compliance with its terms. All users signing up on behalf of or under an entity or organization must sign up using their official email id. The entity guarantees the compliance of all of its employees, officers, agents, contractors and other related persons.
d. Your use of the Platform is conditional on you being at least 18 years old and having the legal capacity to entering into binding contracts.
e. This EULA may be supplemented by an offer document or the like (on our website, by email or through our authorized reseller) which states the commercial terms on which this Platform and related services are being provided to you, including but not limited to: the fees payable by you to us or any third-party, the payment terms, how many authorized users accounts you may create, etc. (“Commercial Terms”).
a. We may amend this EULA from time to time by providing you with adequate notice. If you do not agree to the amendments, then we may at our sole discretion terminate the EULA (in which case you will only be liable to pay the fees pro-rata or where advance fees has been paid, you will be eligible to receive a refund of the unused amount calculated on pro-rata basis) or abandon the proposed amendment.
a. License Grant. Subject to the terms and conditions of this Agreement, Airgap will provide Customer the Platform for use in accordance with this Agreement. Subject to Customer’s compliance with the terms of this Agreement, Airgap grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform for Customer’s internal business purposes during the Term (defined below). Customer may permit any individual, company, corporation, partnership or other entity, directly or indirectly, controlling, controlled by, or under common control with, such Party, where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of the entity (“Affiliates”) to use the Platform; provided that Customer (i) warrants that it has the ability to bind such Affiliates under this Agreement; (ii) is fully liable and responsible for all acts and omissions of such Affiliates under this Agreement as if such acts and omissions were committed by Customer; and (iii) Airgap consents to the use by such Customer Affiliate in writing.
b. Restrictions. Customer is responsible for all activities conducted by it and its users pursuant to this license. This license does not allow the Customer to modify any portion of the Platform to remove or circumvent technical limitations of the license. Customer may not (i) copy, modify, or create derivative works of the Platform or any software component of the Platform; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws. Any attempt to do so is a violation of the rights of Airgap. The terms of this Agreement will govern any upgrades provided by Airgap that replace and/or supplement the original Platform unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Termination of License. Customer’s rights under this license will terminate automatically without notice if Customer fails to comply with any terms of this license. Upon termination of the license, Customer must immediately cease using the Platform. Customer’s license to use the Platform may also be terminated as set forth in Section 6.
d. Suspension. Airgap reserves the right to suspend Customer’s access to the Platform if: (i) Customer has not paid the applicable fees for the Platform; (ii) Customer is in material breach of any of the terms of the Agreement; (ii) Airgap reasonably believes Customer’s use of the Platform poses a risk to Airgap, the Platform, other Airgap customers or third parties; or (ii) Customer is using the Platform or Airgap’s intellectual property for fraudulent or illegal activities. Airgap will use commercially reasonable efforts to (x) provide Customer with written notice of any suspension (which may be no notice at all) and (y) resume providing access to the Platform as soon as reasonably possible after the event giving rise to the suspension is cured. Airgap will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a suspension imposed in accordance with this Section 3(d).
4. Proprietary Rights.
a. Intellectual Property. Airgap and its suppliers and licensors retain all right, title and interest in and to the Platform and any software or other technology used by Airgap in the provision of the Platform and all modifications and derivative works thereof including all trademarks, names, logos, patents, copyrights, trade secrets and other intellectual property rights. Other than as specifically described in Section 3(a), Customer has no right under the Agreement to the Platform or to any of Airgap’s trademarks, patents, copyrights, or other intellectual property rights. Airgap retains all rights not granted expressly granted to the Customer in this Agreement.
b. Usage Data. In connection with the Platform, Airgap may collect information about Customer’s access and use of the Platform, including but not limited to usage and performance information (“Usage Data”). Airgap may use Usage Data to support Customer and improve functionality of the Platform for Customer.
c. Aggregated Data. Airgap may use Usage Data that has been aggregated and anonymized (i.e., any data that identifies the Customer or Customer’s end users has been removed) (“Aggregated Data”) derived from the Platform to support and improve Airgap’s products and services, including in the development of new features, products, tools, and content, and for other commercial purposes.
d. Feedback. If Customer provides any ideas for suggested improvements, modifications, or other feedback about the Platform to Airgap (“Feedback”), Airgap may use, disclose or otherwise exploit such Feedback without restriction or further obligation to Customer.
5. Fees and Payment.
a. Fees. In consideration of the grant of license by Airgap in terms of this Agreement, the Customer shall pay the applicable fees in accordance with the Commercial Terms.
b. Payment Terms. Unless otherwise expressly specified in an invoice, (i) all fees are non-refundable and no credits will be made available for partially used Terms or periods; and (iii) suspension or termination of the Platform shall not relieve Customer of any payment obligations under the Commercial Terms.
c. Billing Disputes. In the event that Customer, in good faith, disputes any amount charged or invoiced hereunder, such dispute must be reported to Airgap within thirty (30) days following receipt of invoice or the applicable statement, provided that in no event shall Customer withhold any fees not subject to a good faith dispute.
6. Term and Termination.
a. Effective Date. This EULA will be effective from the date set out in the Commercial Terms, or if unspecified, the date upon which you give your express consent to this EULA and/or when you first install the Platform, as specified in Section 1(b).
b. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period as specified in Commercial Terms or, if unspecified, for the time period for which the fee has been paid by the Customer.
c. Termination. The Term may be terminated by either Party (a) upon thirty (30) days prior written notice in the event of a material breach of this Agreement by the other Party which is not cured within such period; (b) immediately upon written notice if either party materially breaches a provision of this Agreement that cannot be cured; or (c) immediately upon written notice if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable insolvency proceeding, or if any such insolvency proceeding is instituted against the other (and not dismissed within 120 days). Airgap may terminate this EULA immediately on notice if we suspect or believe that the Platform is being used or proposed to be used for illegitimate or fraudulent purposes or in violation of the restrictions placed under Section 3(b).
d. Suspension: Without limiting any other right or remedy available to Airgap, Airgap may restrict or suspend Customer’s access to and use of the Platform and/or associated services if it considers that Customer or any of its personnel or Affiliates has:
i. undermined, or attempted to undermine, the security or integrity of the Platform and/or related services;
ii. used, or attempted to use, the Platform:
for improper purposes; or
in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Platform; or
transmitted, inputted or stored any content that breaches or may breach this EULA or any third party right (including Intellectual Property Rights and rights of privacy or publicity), or that is or may be objectionable, incorrect or misleading.
e. Effect of Termination. Upon termination of this Agreement, (a) the rights granted to Customer under the Agreement will immediately terminate, (b) all fees owed by Customer to Airgap (if any) are immediately due upon receipt of a final invoice, and (c) and Customer will immediately cease use of the Platform.
f. Survival. Upon termination of this Agreement, parties’ obligations under Sections 4 (Proprietary Rights); 7 (Confidentiality); 8 (Security and Privacy); 9 (Disclaimer); 10 (Limitation of Liability); 11 (Indemnification); and 12 (General Provisions), will survive.
a. Definition. Each Party agrees that the business, technical, financial and other information, including without limitation, all software, source code, inventions, algorithms, techniques, methodologies, schematics, know-how, analyses, trade secrets, technical data, strategic planning, marketing data, databases, drawings, models, performance information and ideas and the terms and conditions of this Agreement, that is either designated in writing as confidential, or by the nature of the circumstances a reasonable person would treat as confidential, shall be the confidential property of the disclosing Party (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving Party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving Party, (c) is disclosed to the receiving Party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving Party without use or reference to the Confidential Information of the disclosing Party.
b. Confidentiality Obligations. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information of like kind, but in no event using less than a reasonable standard of care. A Party shall not: (i) disclose or use any Confidential Information of the other Party for any purpose outside the scope of this Agreement, except with the disclosing Party’s prior written permission; and (ii) disclose or make the other Party’s Confidential Information available to any party, except those of its Affiliates, employees, contractors, and agents that have signed or accepted an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. If a Party is compelled by law to disclose Confidential Information of the other Party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure. Due to the unique nature of the Parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a Party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching Party. Therefore, upon any such breach or threat thereof, the Party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it.
8. Security and Privacy.
a. Security. Airgap will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Usage Data and personal data uploaded by or on behalf of Customer to the Platform; (ii) protect against threats or hazards to the security or integrity of Usage Data and personal data; and (iii) prevent unauthorized access to Usage Data and personal data. Airgap’s security safeguards include measures for preventing access, use, modification or disclosure of Usage Data and personal data by Airgap personnel except to protect the Platform and prevent or address service or technical problems, as required by applicable law, or as Customer expressly permits in writing or under this Agreement.
b. Privacy. Many states and countries limit or otherwise regulate the use, collection, and storage of information that can be used to identify individuals. Customer is responsible for understanding and complying with the relevant authorities in its jurisdiction and the jurisdictions where it stores or processes data. Customer must check those laws before using the Platform. Customer may also be required to enable or disable data collection/storage features of the Platform as a result of those laws. Customer is wholly responsible for ensuring full compliance with the laws and regulations of the jurisdiction wherein the Platform is to be used and the jurisdictions where it stores or processes data related to its use of the Platform. AIRGAP FULLY DISCLAIMS ANY LIABILITY FOR ANY LOSS, DAMAGES OR OTHER LIABILITY THAT MAY ARISE FROM CUSTOMER’S NON-COMPLIANT USE OF THE SYSTEM OR OF THE DATA RETRIEVED THROUGH ITS USE.
9. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES ALL RISKS ARISING OUT OF USE OF THE PLATFORM, EXCEPT TO THE EXTENT THAT AIRGAP IS FOUND TO BE GROSSLY NEGLIGENT OR IN MATERIAL BREACH OF THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PLATFORM AND SUPPORT SERVICES (IF ANY) ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS AND WITHOUT ANY ASSURANCE, OR WARRANTY, CONDITION OR DUTY OF OR REGARDING FUNCTIONALITY, PERFORMANCE, PRIVACY, SECURITY, ACCURACY, EFFECTIVENESS, AVAILABILITY, REPAIRS, OR LACK OF NEGLIGENCE, INTERRUPTION, VIRUSES OR OTHER HARMFUL CODE, COMPONENTS, OR TRANSMISSIONS. AIRGAP, OUR AFFILIATES, LICENSORS, AND SUPPLIERS MAKE NO WARRANTY AND HEREBY DISCLAIM ANY IMPLIED, STATUTORY OR OTHER WARRANTY, INCLUDING ANY WARRANTY OF TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK (IN CONNECTION WITH THE PLATFORM) AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. IN ADDITION, AIRGAP DOES NOT WARRANT OR GUARANTEE THAT THE PLATFORM WILL DETECT ALL POSSIBLE ATTACKS AND/OR THREATS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AIRGAP SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
10. Limitation of Liability. IN NO EVENT WILL AIRGAP, OUR AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR, AND CUSTOMER CANNOT RECOVER, ANY COSTS, DAMAGES AND EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, PUNITIVE, INCIDENTAL, SPECIAL, INDIRECT AND CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR DAMAGES RESULTING FROM LOST OR CORRUPTED DATA OR BUSINESS INTERRUPTION OR ANY LOSS OR DAMAGES RESULTING FROM SYSTEM FAILURE, MALFUNCTION, SHUTDOWN, FAILURE TO ACCURATELY TRANSFER OR READ INFORMATION, FAILURE TO PROVIDE CORRECT INFORMATION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) RESULTING FROM OR RELATED TO THE USE OR INABILITY TO USE THE PLATFORM, HOWEVER CAUSED, OR THE CONTENT OF THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AIRGAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AIRGAP WILL BE LIABLE TO CUSTOMER ONLY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY CUSTOMER, NOT TO EXCEED THE FEES PAID TO AIRGAP OR ITS RESELLER BY CUSTOMER OVER THE PRECEDING TWELVE (12) MONTHS. THIS IS THE CUSTOMER’S EXCLUSIVE REMEDY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
a. Airgap Indemnification. Subject to Section 11(c) below, Airgap will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by an unaffiliated third party arising from or alleging that the use of the Platform as permitted hereunder infringes or misappropriates a valid US or European Union patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Airgap) in connection with any such Claim. The terms “misappropriate” and “trade secret” are used as defined in the Uniform Trade Secrets Act, except in case of claims arising under any claim governed by the laws of any jurisdiction outside the United States, in which case “misappropriation” will mean intentionally unlawful use and “trade secret” will mean “undisclosed information” as specified in Article 39.2 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.
b. Customer Indemnification. Customer will defend Airgap against any Claim made or brought against Airgap by an unaffiliated third party arising from or alleging (i) a breach by Customer or any Customer personnel, contractor, agents, Affiliates or subcontractors of the Agreement or the applicable law; and (ii) the use or misuse of the Platform (whether by Customer or any Platform user authorized by the Customer or acting under the Customer’s instructions).
c. Restrictions. Airgap will have no liability for any claim of infringement based on: (i) use of the Platform in combination with equipment, services or software not supplied by Airgap where the Platform would not itself be infringing; (ii) modifications of the Platform without Airgap’s written consent; (iii) Customer’s failure to timely implement any maintenance release, modification, update or replacement provided by Airgap; (iv) negligence, abuse, misapplication or misuse of the Platform by or on behalf of Customer; and (v) use of the Platform by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Customer’s instructions.
d. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to Section 11(a) or Section 11(b). The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11(d) will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. General Provisions.
a. Relationship of Parties. The Parties are independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
b. Force Majeure. If either Party is unable to perform any of its obligations under the Agreement or such performance is delayed, other than payment obligations, due to any cause or event beyond the reasonable control of such Party (a “Force Majeure Event”), then such Party shall be excused for such delay or non-performance, as applicable, of those obligations for as long as such Force Majeure Event continues.
c. Notice. All notices must be in writing and must be made by email. Notices are taken to be read on the day they are received, unless they are received after 6 PM or not on a business day in California, in which case they are deemed to be received on the next business day in California.
d. Headings. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.
e. Entire Agreement. This Agreement, together with the Commercial Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The fees paid in terms of the Commercial Terms (whether to Airgap or its authorized reseller) will form a valid consideration for the rights and obligations set out hereunder.
f. Assignment. Customer may not assign the Agreement in whole or in part, without Airgap’s prior written consent. Airgap may assign the Agreement or any of our Airgap’s rights and obligations under it at any time. Any attempted assignment or transfer in violation of this Section 12(f) will be void and without effect. Subject to the foregoing, the Agreement will be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
g. Waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
h. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
i. Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal or courts in Santa Clara County, California, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.