IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE (DEFINED BELOW), YOU (DEFINED BELOW) AGREE AND ACCEPT TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT (DEFINED BELOW), INCLUDING THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERRED TO HERE AND/OR AVAILABLE BY HYPERLINK. THESE TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND THRIVEDX SAAS (AS DEFINED BELOW) IN RELATION TO YOUR USE OF THE SOFTWARE AND CONTENT, AND MAY BE UPDATED BY THRIVEDX SAAS AT ANY TIME AT ITS SOLE DISCRETION. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE.
This Terms and Conditions (the “Agreement”) is hereby entered into and agreed upon by you, either an individual or an entity (“You” or “Company”) and ThriveDX SaaS Ltd and its affiliates, which shall include but not be limited to ThriveDX SaaS Inc, ThriveDX SaaS Pte Ltd and Lucy Security AG (“We” or “ThriveDX SaaS”). Company and ThriveDX SaaS together, the “Parties” and each, a “Party”.
1.1. “Affiliates” means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Affiliates may use the license granted hereunder. All references to ThriveDX SaaS shall be deemed to be references to ThriveDX SaaS and its Affiliates, and all references to Company, You, or Your shall be deemed to be references to Company and its approved Affiliate(s) by ThriveDX SaaS.
1.2. “Content” means, included but not limited to, SCORM files, training modules, attack templates and files, mock websites, interactive games, quizzes, videos and animations.
1.3. “Server” means any physical or virtual computer system that holds the program and provides data and services to end users of the Software via a browser or other program.
1.4. “Documentation” means the official user documentation prepared and provided by ThriveDX SaaS to You on the use of the Software. For the avoidance of doubt, any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.
1.5. “Software” means the object code versions of the product, together with the updates, new releases or versions, modifications or enhancements, executable media for attack simulations, and any attack templates or any other documents owned and provided by ThriveDX SaaS to You pursuant to this Agreement.
2. GRANT OF LICENSE.
2.1. Production License. Upon payment of the applicable subscription fees for the Software and continuous compliance with the terms and conditions of this Agreement and the Documentation, ThriveDX SaaS hereby grants You a limited, worldwide, annual, nonexclusive, nontransferable license to use the object code of the Software and Documentation subject to the terms contained herein:
a) For each Software license key that You purchase from ThriveDX SaaS, ThriveDX SaaS installs the Software on a dedicated Server for You (“Customer Dedicated Server”).
b) The Software and Content is in use on a Server when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). You agree to prevent and protect the contents of the Software, Content and Documentation from unauthorized use or disclosure, in accordance with ThriveDX SaaS’s instructions as may be provided to Company from time to time and with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances.
2.2. Software Evaluation License. If the Software is provided to You for evaluation purposes, ThriveDX SaaS grants to You a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software solely for evaluation prior to purchase (an “Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from ThriveDX SaaS at its sole discretion. Notwithstanding any other provision contained herein, Software and Content provided pursuant to an Evaluation License is provided to You “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this Agreement shall apply to Software licensed under an Evaluation License.
3. LICENSE RESTRICTIONS.
3.1. You may not: (i) provide, make available to, or permit any third parties (except Affiliates approved in writing by ThriveDX SaaS) to use the Software, Content or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation; (iv) license, sell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate Your license to the Software.
3.2. ThriveDX SaaS Trademarks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of ThriveDX SaaS, any derivation thereof, or any icon, image, or text that is likely to be confused with the same, except where allowed and as described in the Documentation. All representations of the company name or mark “ThriveDX SaaS” or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice, unless mutually agreed in writing.
3.3. Export Restrictions. The Software, Content and Documentation delivered to You under this Agreement are subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. You shall abide by all applicable export control laws, rules and regulations applicable to the Software and Documentation. You agree that You will not export, re-export, or transfer the Software or Documentation, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software, Content or Documentation (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who You know or have reason to know will utilize the Software or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
3.4. Compliance with Applicable Laws. The Software and Documentation are protected by the intellectual property laws and other laws of Switzerland, Singapore and the U.S, and international laws and treaties. You agree that You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4. INTELLECTUAL PROPERTY.
4.1. Use herein of the word “purchase” in conjunction with licenses, Content, or the Software shall not imply a transfer of ownership. Unless as conveyed herein, this Agreement does not grant You any rights, title, or interest in or to Software, Content, Documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any inventions, patents, patent applications, images, photographs, animations, video, audio, music, and text incorporated into the Software, logos, trade names, and corporate names, domain names, any work of authorship, copyrights, trade secrets, design, Confidential Information (as defined below), the accompanying printed materials, and any copies of the Software, and all other proprietary rights in whatever form or medium, in each case on a worldwide basis; together with all revisions, extensions, reexaminations translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith) (all together “Intellectual Property”) and all derivative works, modifications, improvements, updates, upgrades, enhancement, added features, inventions, ideas, insights, concepts, methods, know-how and processes relating to the same, whether created, developed, discovered or conceived in connection with this Agreement or otherwise, and regardless of whether Company or anyone on its behalf may have contributed to the conception of any of the foregoing, or paid ThriveDX SaaS for such, are and shall at all times vest exclusively with ThriveDX SaaS, and may not be used by or for Company or anyone on its behalf including its subsidiaries or parent company or any other related party, except as expressly provided herein. All rights not expressly granted under this Agreement are reserved by ThriveDX SaaS, its suppliers, or third parties.
4.2. All title, rights, and interest in and to Content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same.
4.3. ThriveDX SaaS agrees that the data and information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints, and the like) generated by the Software from Your proprietary data and information shall be and remain Your sole property.
5.1. “Confidential Information” means any nonpublic or proprietary information, in tangible or intangible form, that a party to this Agreement (“Disclosing Party”) discloses to the party that receives such information (“Receiving Party”). Confidential Information includes the Software, Documentation, any know-how, trade secrets and any other Intellectual Property or proprietary rights or information thereto. Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality; (iv) is independently developed by Receiving Party without reference to or use of the Confidential Information; or (v) required to be disclosed by a court or governmental authority or by applicable law or regulation, provided however, that (a) the Receiving Party notifies the Disclosing Party of such disclosure, to the extent not limited by law; and (b) to the extent possible, provides the discloser with the opportunity to oppose the disclosure or obtain a protective order.
It is hereby agreed that, without limiting the foregoing, all Intellectual Property in and to the Software, Content, and any and all Documentation, user guides and manuals, and other data and materials related to the foregoing or made available by ThriveDX SaaS to Company pursuant to this Agreement, are considered as Confidential Information of ThriveDX SaaS.
5.2. Protection. Receiving Party may use Confidential Information of Disclosing Party; (a) to exercise its rights and perform its obligations under this Terms and Conditions; or (b) in connection with the parties’ ongoing business relationship. Receiving Party will not use any Confidential Information of Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Receiving Party’s duty hereunder. Receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The parties will each be responsible for any breach of this Agreement by their consultants or agents and each party agrees to take all reasonable measures to restrain its consultants or agents from disclosure or improper use of the other party’s Confidential Information. Confidential Information shall remain at all times the property of the Disclosing Party. No rights to use, license or otherwise exploit the Confidential Information are granted to the Receiving Party or its agents, by implication or otherwise.
5.3. Data Rights. You agree that ThriveDX SaaS will collect and track technical and related information about You and Your use of the Software, which may include Your internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and Software usage statistics, to assist with the operation and function of the Software, the provision of updates, support, invoicing by ThriveDX SaaS or its agents and research and development.
EXCEPT AS EXPRESSLY STATED OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THRIVEDX SAAS IS PROVIDING AND LICENSING THE SOFTWARE TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
You will indemnify ThriveDX SaaS for, and hold it harmless from, any claims, proceedings, suits, demands, liability, costs and expenses, including legal expenses and attorneys’ fees arising from or in connection with, and defend and settle at its own expense, any action or other proceeding brought against ThriveDX SaaS or anyone on its behalf, to the extent that such action or proceeding is based on: (i) any breach by You or anyone on Your behalf of this Agreement; (ii) any negligent or willful misconduct; (iii) breach of confidentiality obligations; iv) violation or infringement of Intellectual Property; v) You making representations or warranties regarding ThriveDX SaaS’s Software; and (vi) any violation of any applicable law or regulation. You will pay any and all costs, damages, and expenses (including but not limited to attorneys’ fees) awarded against ThriveDX SaaS in any such action or proceeding.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THRIVEDX SAAS, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO YOU (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) (I) FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO THRIVEDX SAAS IN THE PRECEDING (12) TWELVE MONTHS FOR THE APPLICABLE SOFTWARE; (II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE , ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF THRIVEDX SAAS OR A DEALER AUTHORIZED BY THRIVEDX SAAS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (III) IF YOU, OR ANYONE ON YOUR BEHALF HAVE MODIFIED, CHANGED OR ALTERED ANY PART OF THE SOFTWARE AND/OR THE CONTENT.
9. THIRD PARTY PROGRAMS.
To the extent the Software is bundled with third party software programs; these third party software programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any such third party software.
10. LICENSE PERIOD.
Each Software is licensed for the period specified in its particular Quote or Purchase Order (the “License Period”).
Software support services will be provided for the term specified in each Quote. Once the commercial license has expired, the administrator will still have access to previous reports only. The full functionality of the Software can be recovered at any time by purchasing a new license key.
During the License Period, You may receive additional Software and Content updates and/or upgrades. For clarity purposes, regardless of the installation of any updates and/or upgrades provided by ThriveDX SaaS, the Software is fully functional during the License Period.
11. TERM AND TERMINATION.
11.1. The Agreement shall commence as of the date set forth in the Quote and shall remain in effect through the end of the term stated in the Quote (“Term”).
11.2. Either Party may terminate this Agreement if the other Party breaches any term or condition of this Agreement and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, ThriveDX SaaS may immediately, by written notice to Company, suspend or terminate this Agreement and the services and rights provided hereunder if Company fails to make any timely payment of fees owed to ThriveDX SaaS and such failure is not cured within fourteen (14) days of receipt of notice thereof.
11.3. Either Party shall have the right to immediately terminate this Agreement, upon written notice, in the event the other Party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within sixty (60) days.
11.4. Upon termination or expiration of this Agreement:
· Company shall immediately cease using and accessing the Software. It is clarified that upon termination or expiration of this Agreement, ThriveDX SaaS may terminate the access and use of the Software, any and all support and maintenance services in connection with the Software, and/or remove the Software and/or block access to the Software such that it shall no longer be accessible by Company. For the removal of doubt, ThriveDX SaaS will not be liable to Company, in connection with any of the foregoing, including for any compensation and/or reimbursement of any sort;
· Company shall, within fourteen (14) days following such termination or expiration, pay ThriveDX SaaS any outstanding fees owed to ThriveDX SaaS hereunder;
· Each Party shall return (or destroy, if so requested by the other Party, and certify such destruction in writing) to the other Party all Confidential Information of such other Party.
11.5. Termination of this Agreement under this Section 11 shall be in addition to, and not a waiver of, any remedy at law or in equity available to ThriveDX SaaS arising from Company’s breach of this Agreement.
11.6. Termination of this Agreement shall not affect any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after the termination, including but not limited to Sections 11 (“Term and Termination”), 4 (“Intellectual Property”), 5 (“Confidentiality”), 6 (“Warranty”), 7 (“Indemnity”) and 8 (“Limitation Of Liability”).
11.7. The termination or expiration of any Quote shall not be deemed termination or expiration of any other Quote in effect at the time of termination or expiration, and this Agreement shall continue to apply to such outstanding Quotes until such Quotes have expired or terminated by their own terms or as set forth herein.
12. CHOICE OF LAW AND VENUE.
This Agreement shall be governed by the laws applicable to ThriveDX SaaS’ Affiliate stated in Your Quote, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The Parties agree that the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. You hereby consent to jurisdiction of the courts of ThriveDX SaaS’ Affiliate stated in Your Quote.
13. COUNTERPARTS AND FACSIMILE SIGNATURE.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The Parties may exchange signature pages by facsimile and/or email and such signatures shall be effective to bind the Parties.
14. COMPLETE AGREEMENT.
15. ASSIGNMENT. This Agreement may not be assigned without the prior written consent of the other Party, except that ThriveDX SaaS may assign this Agreement in connection with a merger, acquisition, sale of all or substantially all of ThriveDX SaaS’ assets or other such corporate reorganization. This Agreement may only be amended by a written document executed by both Parties.
16. GOVERNMENT USE.
ThriveDX SaaS’ Software and Documentation was developed exclusively at private expense and is a “commercial item” as defined in FAR 2.101, and any supplement is provided with no greater than RESTRICTED RIGHTS. Such Software and related items consist of “commercial computer software,” “commercial computer software documentation,” and commercial technical data as defined in the applicable acquisition regulations, including FAR 2.101 and FAR Part 12. Use, duplication, release, modification, transfer, or disclosure (“Use”) of the Software and Documentation is restricted by this Agreement and in accordance with DFARS Section 227.7202 and FAR Section 12.212, and the Software and Documentation are licensed (i) only as commercial items; and (ii) with only the rights granted to commercial end users pursuant to this Agreement. Such Use is further restricted by FAR 52.227-14, 252.227-7015, or similar acquisition regulations, as applicable and amended. Except as described herein, all other Use is prohibited. This section is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing Government rights under this Agreement or any other contract which the Software or Documentation is acquired or licensed.