TERMS OF SERVICE

 

Last Updated: May 22, 2023

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These terms of service, together with our Privacy Policy which can be found at https://www.exigence.io/privacy-policy (collectively, the “Terms of Service”), govern your and/or the entity's on whose behalf you are agreeing to these Terms of Service ("Client") access to and use of the SaaS Services (as defined below) which are provided by Exigence Ltd. and/or any of its subsidiaries (collectively, "Exigence"), and Client's access to and use of Exigence's website, when such use of the SaaS Services and Exigence’s website is by Client directly and/or through Exigence’s partner providing services to Client ("Partner").

These Terms of Service take effect when Client clicks the “I accept” button or check the box presented with these Terms of Service (the "Effective Date"). You represent and warrant that you have full legal authority to bind Client to these Terms of Service.

Exigence may update these Terms of Service from time to time and will notify Client of such updates either via email or by posting notice of such changes on its website, or by any other reasonable means. Client’s continued use of the SaaS Services after Exigence’s provision of a notice of an updated version of the Terms of Service shall constitute Client’s consent to such updated Terms of Service.

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1. Exigence Responsibilities

SaaS Services. During a Subscription Term, Client will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services, subject to the terms of these Terms of Service.

Protection of Client Data. Exigence will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client Data. Those safeguards will include measures for preventing access, use, modification or disclosure of the Client Data by Exigence's personnel except (a) to provide any services under these Terms of Service, (b) as compelled by law, or (c) as Partner or Client expressly permit in writing.

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2. User Subscriptions

SaaS Services are purchased as subscriptions to access and use the Software in accordance herewith (the "User Subscriptions"). Client undertakes that:

• the maximum number of Users that it shall authorize to access and use the SaaS Services will not exceed the number of User Subscriptions purchased from time to time;

• it will not allow any User Subscription to be used by more than one individual user unless it has been reassigned in its entirety to another individual user, in which case the prior user will no longer have any right to access or use the SaaS Services;

• each User will keep a secure password for its own use of the SaaS Services, and each User will keep its password personal and confidential; and

• each User's log in to access the SaaS Services shall include a two-factor authentication.

Client will be responsible for all actions taken by Users or through use of the passwords provided to such Users.

Client will:

• notify Exigence or Partner immediately of any unauthorized use of any password or user ID or any other known or suspected breach of security;

• report to Exigence or Partner immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Client and/or any User; and

• not provide false identity information to gain access to or use the SaaS Services.

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3. Client Responsibilities

Client Data. Client will be responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of Client Data and the means by which Client acquired Client Data. Client will upload any and all Client Data that is required for the proper provision of the SaaS Services. Client will comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data protection and privacy, international communications, and the transmission of technical or personal data. Client acknowledges that Exigence exercises no control over the content of the information transmitted by Partner and/or Client through the SaaS Services.

Client will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the owner of such rights. Client is solely responsible for ensuring that the Client Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

License from Client. Subject to these Terms of Service, Client grants to Exigence and its affiliates and subcontractors a worldwide, limited term, non-exclusive and non-transferable license: (i) to copy, store, host, configure, perform, display and transmit Client Data solely as necessary to provide the SaaS Services to Client in accordance with these Terms of Service, and (ii) to aggregate limited de-identified or anonymized Client Data and/or data about Users, relating to Users' use of the SaaS Services, solely for the purpose of operating and improving the SaaS Services. Client hereby authorizes Exigence to store the Client Data on servers of third-party hosting services providers that may be utilized by Exigence from time to time.

Usage Restrictions.  Client will not, and will not permit anyone to:

• copy or republish the SaaS Services or Software or any part, feature, function or user interface thereof;

• make the SaaS Services available to any person other than authorized Users or allow any public performance or display of the SaaS Services or the Software;

• use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party data protection or privacy rights;

• use the SaaS Services to store or transmit Malicious Code;

• modify or create derivative works based upon the SaaS Services, the Software and/or the Documentation;

• remove, modify or obscure any copyright, trademark or other proprietary notices contained in the SaaS Services, the Software and/or the Documentation;

• reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software, except and only to the extent such activity is expressly permitted by applicable law without a contractual waiver possibility;

• access the SaaS Services or use the Documentation in order to build a similar product or competitive product, (x) permit direct or indirect access to or use of the SaaS Services in a way that circumvents a contractual usage limit; or

• access the SaaS Services or use the Documentation for any purpose other than the purposes stipulated in these Terms of Service. Client will use the SaaS Services only in accordance with the Documentation, applicable laws and government regulations.

Client will be responsible for compliance with these Terms of Service by all Users.

Network Requirements. Client will provide all necessary cooperation in relation to the SaaS Services, and will authorize, to the extent not prohibited by applicable laws and regulations, all necessary access to such information as may be required by Exigence or any third party on its behalf in order to render the SaaS Services, including but not limited to security access information and configuration services. Client undertakes to use all reasonable endeavors, but in any event no less than such endeavors used to protect its own network and systems, to prevent any unauthorized access to, or use of, the SaaS Services and/or the Software and, in the event of any such unauthorized access or use of any password or user id or any other known or suspected breach of security, promptly notify Exigence or Partner and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Client and/or any User.

Client will ensure that Client's network and systems comply with the relevant specifications provided by Exigence from time to time, and be solely responsible for procuring and maintaining network connections and telecommunication links from their systems to the hosting data center(s), and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to their network connections or telecommunication links or caused by the Internet.

Client will not, and will ensure that none of its personnel will: (a) interfere with or disrupt the integrity or damage the performance of the SaaS Services or any other computer system or network or circumvent or manipulate the operation or functionality of the SaaS Services; or (b) violate the security or integrity of any network, computer or communications system, software application or network or computing device involved in the SaaS Services. Client will be solely responsible for the acts and omissions of all Users.

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4. Proprietary Rights

Subject to the limited rights expressly granted herein, Client retains ownership or license, as applicable, and intellectual property rights in the Client Data. Subject to the limited rights expressly granted herein, Exigence and its licensors retain all ownership and intellectual property rights to the SaaS Services, the Software, the Content, the Documentation, and anything developed and delivered under these Terms of Service, including without limitation any fix-pack, modification, improvement, update, upgrade, derivative, feedback and/or enhancement related thereto, and any technology, know-how, methodology, algorithm, trade secret or idea associated therewith, including any that is generated by either party in connection herewith, and all intellectual property rights therein. Client agrees to assign all right, title and interest it may have in the foregoing to Exigence.

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5. Confidentiality

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

Neither party shall disclose any Confidential Information of the other without the Disclosing Party’s written consent unless required to do so by applicable law, stock exchange or listing requirements or regulations, or a governmental authority with competent jurisdiction, in which case the Receiving Party shall provide notice of such compelled disclosure to the Disclosing Party as soon as reasonably possible. Confidential Information hereunder shall include, but not be limited to business and marketing plans, technology and technical information, product plans and designs, and business processes of each party. The confidentiality obligations hereunder shall survive the termination of this Agreement.

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6. Term and Termination

Term. The term of these Terms of Service will begin on the Effective Date and will continue until all Subscription Terms hereunder have expired or have been terminated, whichever is earlier.

Termination. Exigence may terminate these Terms of Service immediately upon a material breach by Client that, if capable of being cured, has not been cured within fourteen (14) days after receipt of notice of such breach.  

Suspension for Non-Payment. Exigence reserves the right to suspend delivery of the SaaS Services to Client if Partner fails to timely pay any undisputed amounts due to Exigence under these Terms of Service. Client agrees that Exigence will not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Partner's nonpayment.

Suspension for Ongoing Harm. Exigence reserves the right to suspend delivery of the SaaS Services, or a portion thereof, if Exigence reasonably concludes that Client's use of the SaaS Services is causing immediate and ongoing harm to Exigence or others. In the extraordinary case that Exigence must suspend delivery of the SaaS Services, Exigence will immediately notify Partner of the suspension and the parties will diligently attempt to resolve the issue. Exigence will not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this sub-section (Suspension for Ongoing Harm). Nothing in this sub-section will limit Exigence's rights under sub-section "Effect of Termination" below.

Effect of Termination:

Upon termination of these Terms of Service or expiration of a Subscription Term, Exigence will immediately cease providing the SaaS Services and all usage rights granted under these Terms of Service will terminate.

Upon request by Client or Partner made within 30 days after the effective date of termination or expiration of these Terms of Service, Exigence will make the Client Data available to Client or Partner for export or download in accordance with Exigence practices. After that 30-day period, Exigence will have no obligation to maintain or provide Client Data, and will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control in accordance with Exigence practices, unless legally prohibited.

Upon termination of these Terms of Service and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information will immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

Surviving Provisions. All provisions of these Terms of Service which by their nature are intended to survive after termination of these Terms of Service will survive any termination or expiration of these Terms of Service, such as the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Term and Termination), 8 (Warranties), 9 (Limitations of Liability), 11 (Indemnification), 20 (Governing Law).

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7. Personal Data Protection.

The provisions of the (i) Data Protection Addendum which can be found at https://www.exigence.io/dpa-and-ccpa (the "Data Protection Addendum") and relating to the protection of Personal Data (as defined in the GDPR) under the EU General Data Protection Regulation ("GDPR") and (ii) the CCPA Provisions that can be found at https://www.exigence.io/dpa-and-ccpa (the "CCPA Provisions"); shall apply to any Personal Data which may be included in Client Data. The terms of the Data Protection Addendum and CCPA Provisions are incorporated herein by reference and shall constitute an integral part of these Terms of Service. Personal Data will be stored in a data center in the USA, and upon request may be stored in a data center in Ireland.

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8. Warranties

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

EXIGENCE DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT EXIGENCE WILL CORRECT ALL ERRORS. EXIGENCE EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE DATA CREATED AS A RESULT OF, OR IN CONNECTION WITH, THE USE OF THE SAAS SERVICES, INCLUDING WITHOUT LIMITATION, ANY MISTAKEN OR NON-OPTIMAL FINANCIAL OR ACTUARIAL CALCULATIONS AND/OR ANALYSIS. CLIENT ACKNOWLEDGES THAT USE OF THE CONTENT IS AT CLIENT’S OWN RISK AND EXIGENCE DOES NOT GUARANTEE THAT THE CONTENT WILL SERVE AS APPROPRIATE RESPONSE TO ANY SPECIFIC INCIDENT THAT MAY OCCUR TO CLIENT AND DOES NOT GUARANTEE THAT THE CONTENT COMPLIES, OR COULD ENHANCE CLIENT’S COMPLIANCE, WITH THE REQUIREMENTS OF ANY LAW OR REGULATION. CLIENT AGREES THAT ANY WORK DONE WITH AND/OR BASED ON THE SAAS SERVICES, INCLUDING THE CONTENT, OR THE DATA CREATED AS A RESULT OF, OR IN CONNECTION WITH, THE USE THEREOF IS DONE ENTIRELY AT ITS OWN RISK.

CLIENT ACKNOWLEDGES THAT EXIGENCE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY EXIGENCE (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE. NEITHER EXIGENCE NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR WILL EXIGENCE OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CLIENT'S OR ANY USER'S DATA, FILES, OR PROGRAMS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

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9. Limitations of Liability

NEITHER EXIGENCE, NOR ANY LICENSOR, SUPPLIER, OR CLIENT OF EXIGENCE, BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, DAMAGES FOR LOST BUSINESS, REVENUES, PROFITS, DATA OR USE OF ANY SERVICE, AND LOSSES INCURRED AS A RESULT OF, OR IN CONNECTION WITH, MISTAKEN OR NON-OPTIMAL FINANCIAL OR ACTUARIAL CALCULATIONS AND/OR ANALYSIS (ALL WHETHER DIRECT OR INDIRECT) INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OF SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR EXIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXIGENCE’S ENTIRE AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS OF SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY PARTNER UNDER THESE TERMS OF SERVICE DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

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10. Indemnification

Indemnification by Client. If a third party makes a claim against Exigence arising from or relating to: (a) the Client Data, (b) use of the SaaS Services other than in accordance with the Documentation and/or these Terms of Service or any other breach of the Documentation and/or these Terms of Service, (c) use of the SaaS Services in violation of any applicable law or infringement of any patent, copyright or trademark, or (d) negligence or willful misconduct by Client, then Client will defend Exigence and its directors, officers and employees against the claim at Client's expense and Client will pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Client, to the extent arising from the claim.

Conditions for Indemnification. Exigence will (a) promptly notify Client of the claim, (b) give Client sole control of the defense and settlement of the claim (except that Client may not settle any such claim unless it unconditionally releases Exigence of all liability), and (c) provide, at Client’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by Client in the defense and settlement of the claim.

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11. Assignment

Exigence may freely assign any of its rights and obligation under these Terms of Service. Client may not assign these Terms of Service without the prior written consent of Exigence; provided however, that Client may assign these Terms of Service to an acquirer of all or substantially all of the business of Client, whether by merger, asset sale or otherwise. These Terms of Service will be binding upon and inure to the benefit of the parties' successors and permitted assigns. Exigence may employ subcontractors in performing its duties under this Agreement, provided, however, that it will not be relieved of any obligation under these Terms of Service.

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12. Force Majeure

Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, pandemics, epidemics, communication line failures, and power failures.

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13. Waiver

No waiver will be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of these Terms of Service will not constitute a waiver of any other or subsequent breach.

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14. Severability

If any term of these Terms of Service is held to be invalid or unenforceable, that term will be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of these Terms of Service will remain in full force.

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15. Entire Agreement

These Terms of Service (including all schedules and exhibits) contain the entire agreement between Exigence and Client and supersedes all previous oral and written communications by the parties, concerning the subject matter of these Terms of Service.

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16. Marketing and Publicity

Exigence may include Client's name and logo in its clients lists (including in social media and in articles and interviews) and on its website and on its marketing materials. Client agrees that Exigence may present a textual promotion with the Software that may be seen by the Users thereof (e.g. "Powered by Exigence").

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17. Anti-Corruption

Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Exigence's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

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18. No Third Party Beneficiaries

These Terms of Service are an agreement between the parties, and confer no rights upon either party's employees, agents, contractors, partners of customers or upon any other person or entity.

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19. Independent Contractor

The parties have the status of independent contractors, and nothing in these Terms of Service nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in these Terms of Service, neither party will be responsible for the acts or omissions of the other party or the other party's personnel.

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20. Governing Law

Client from USA or Canada. These Terms of Service will be governed by the laws of the State of New York, USA, excluding its conflict of law principles, and any dispute arising hereunder shall be resolved exclusively in the competent courts of New York City, New York, USA.

Client from Another Jurisdiction. These Terms of Service will be governed by the laws of England and Wales, excluding its conflict of law principles, and any dispute arising hereunder shall be resolved exclusively in the competent courts of London, England.

Notwithstanding any of the foregoing, Exigence shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests.

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21. Definitions

"Client Data" means all electronic data and information submitted and/or uploaded by Client, or by Partner on behalf of Client, for use in connection with the SaaS Services in accordance with the terms and conditions hereof.

"Content” means template documents, examples of incident scenarios, and additional content concerning incident response, to which Client and Partner (for use for the benefit of Client) are provided access as part of the SaaS Services.

"Documentation" means the user guides, online help, release notes, training materials and other documentation to the extent that they shall be provided or made available by Exigence to Client, or to Partner for use on behalf of Client, regarding the use or operation of the SaaS Services.

"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.

"Software" means the software to which Client is provided access as part of the SaaS Services, including any updates or new versions of the same edition.

"SaaS Services" means the specific Exigence's internet-accessible service that provides use of Content and/or Exigence's proprietary Software that is hosted by Exigence or its service provider and made available to Client over a network on a term-use basis.

"Subscription Term" means that period during which Client will have on-line access and use of the Software through Exigence's SaaS Services.

"User" means an individual related to Client and who is authorized by Partner or Client to use the SaaS Services. Users may include employees, consultants, contractors and agents of Client; provided, however, that Users may not include third party consultants, analysts or advisors that are, or are engaged with, competitors of Exigence, except with Exigence's prior written consent.

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