End User License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE ZEROTRUST ISOLATION PLATFORM.
Last Revised: November 9, 2020
This End User License Agreement (“Agreement”) is a legal and binding contractbetween Airgap Networks Inc. (“Airgap”) and the user (“you”), for access to theZero Trust Isolation Platform and/or the device(s), on which the Zero Trust IsolationSoftware is installed, including any associated software, media, printed or electronicdocumentation, updates, and support services for the software and/or device(s) (collectively, the “Platform”). BY CLICKING “I ACCEPT,” OR USING THE PLATFORM, YOU (ON BEHALF OF THE ENTITY YOU REPRESENT) AGREE TO BE BOUND BY THISAGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOTINSTALL, COPY, USE, OR OTHERWISE ACCESS THE PLATFORM. THIS AGREEMENT ISEFFECTIVE AS OF THE DATE ON WHICH YOU ACCEPT THE TERMS OR, IF EARLIER,WHEN YOU REGISTER FOR OR USE AN ACCOUNT OR ACCESS THE PLATFORM(“Effective Date”). YOU MUST BE 18 YEARS OF AGE OR OLDER AND AN EMPLOYEEOR AUTHORIZED AGENT OF A COMPANY WITH A CURRENT CONTRACT WITH AIRGAP (“Customer”) TO USE THE PLATFORM. Any use of the Platform by anyone who isnot a Customer’s employee or authorized agent is prohibited.
a. License Grant. Subject to the terms and conditions of this Agreement, Airgap willprovide you the Platform for use in accordance with this Agreement. Subject to your compliance with the terms of this Agreement, Airgap grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform for your internal business purposes during the Term (defined below). You 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 you (i) warrant that it has the ability to bind such Affiliates under this Agreement; (ii) are fully liable and responsible for all acts and omissions of such Affiliates under this Agreement as if such acts and omissions were committed by you; and (iii) Airgap consents to the use by such Affiliate in writing.
b. Restrictions. You are responsible for all activities conducted by you pursuant to this license. This license does not allow you to modify any portion of the Platform to remove or circumvent technical limitations of the license. You 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. Your rights under this license will terminate automatically without notice if you fail to comply with any terms of this license. Upon termination of the license, you must immediately cease using the Platform. Your license to use the Platform may also be terminated as set forth in Section 3.
d. Suspension. Airgap reserves the right to suspend your access to the Platform if: (i) Customer has not paid the applicable fees for the Platform; (ii) you are in material breach of any of the terms of the Agreement; (ii) Airgap reasonably believes your use of the Platform poses a risk to Airgap, the Platform, other Airgap customers or third parties; or (ii) you are using the Platform or Airgap’s intellectual property for fraudulent or illegal activities. Airgap will use commercially reasonable efforts to (x) provide you 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 you may incur as a result of a suspension imposed in accordance with this Section 1(d).
2. 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 1(a), you have no rights 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 you in this Agreement.
b. Usage Data. In connection with the Platform, Airgap may collect information about your access and use of the Platform, including but not limited to usage and performance information (“Usage Data”). Airgap may use Usage Data to support you and improve functionality of the Platform for you.
c. Aggregated Data. Airgap may use Usage Data that has been aggregated and anonymized (i.e., any data that identifies you 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 you provide 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 you.
3. Term and Termination.
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years or until terminated in accordance with this Section 3 (the “Initial Term”). Following the Initial Term, the Agreement will automatically renew each year (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”), unless terminated in accordance with this Section 3 or either party provides written notice of non-renewal to the other party at least sixty (60) days before the end of the Renewal Term, as applicable.
b. 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).
c. Effect of Termination. Upon termination of this Agreement, the rights granted to you under the Agreement will immediately terminate and you will immediately cease use of the Platform.
d. Survival. Upon termination of this Agreement, parties’ obligations under Sections 2 (Proprietary Rights); 3 (Term and Termination); 4 (Confidentiality); 5 (Security and Privacy); 6 (Disclaimer); 7 (Limitation of Liability); 8 (Indemnification); and 10 (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.
5. 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 you 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 you expressly permit 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. You are responsible for understanding and complying with the relevant authorities in its jurisdiction and the jurisdictions where you store or process data. You must check those laws before using the Platform. You may also be required to enable or disable data collection/storage features of the Platform as a result of those laws. You are 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 you store or process data related to your use of the Platform. AIRGAP FULLY DISCLAIMS ANY LIABILITY FOR ANY LOSS, DAMAGES OR OTHER LIABILITY THAT MAY ARISE FROM YOUR NON-COMPLIANT USE OF THE PLATFORM OR OF THE DATA RETRIEVED THROUGH ITS USE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME ALL RISKS ARISING OUT OF USE OF THE PLATFORM. 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, PRIVACY, SECURITY, ACCURACY, 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 YOU. IN ADDITION, AIRGAP DOES NOT WARRANT OR GUARANTEE THE PLATFORM WILL DETECT ALL POSSIBLE ATTACKS AND/OR THREATS. SHOULD THE PLATFORM PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AIRGAP SHALL CREATE A WARRANTY. YOU AGREE TO OBTAIN (INCLUDING, WITHOUT LIMITATION, THROUGH DOWNLOAD) ANY CONTENT OR PRODUCTS ENTIRELY AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING INFRINGEMENT, USER’S BREACH OF CONTRACT, CONSEQUENCE OR DAMAGE, INCLUDING (WITHOUT LIMITATION) DAMAGE TO YOUR COMPUTER PLATFORM OR LOSS OF DATA. 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 YOU.
7. Limitation of Liability.
IN NO EVENT WILL AIRGAP, OUR AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR, AND YOU 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 PLATFORM 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 YOU ONLY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED THE FEES PAID TO AIRGAP BY CUSTOMER OVER THE PRECEDING TWELVE (12) MONTHS. THIS IS THE YOUR 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 YOU.
You agree to release, discharge, defend, indemnify and hold harmless Airgap and (if applicable) its parents, subsidiaries, officers, directors, employees and agents, assigns, licensors, and suppliers from and against any claims, actions or demands, liabilities and settlements, including, without limitation, legal, and accounting fees, related to or arising out of use in any way of the Platform, including any violations of this Agreement for which you are responsible. Airgap will provide you with prompt notice of any such claim, suit, or proceeding and reasonably cooperate with you, at your expense, in your defense of any such claim, suit or proceeding.
9. Your Conduct and Warranties.
In addition, by using or accessing the Platform, you represent, warrant and agree that you will not do anything that is illegal, infringing, fraudulent, malicious, or could expose Airgap or users of the Platform to harm or liability (including without limitation through transmission of harmful code or offensive content, or access to or transmission of proprietary information), and you will not attempt, encourage or facilitate any of the above.
10. 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. 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.
c. Notice. Airgap may deliver notice to you under this Agreement by means of electronic mail or a general notice on or through the Platform.
You may give notice to Airgap at any time by letter delivered by first-class postage prepaid U.S. mail or overnight courier to the following address:
Airgap Networks, Inc. 3277 S. White Road, Suite #168 San Jose, CA 95148
If you have any questions regarding this Agreement you may contact us at the above address.
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 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.
f. Assignment. You 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 10(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. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by both party. 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.