Safetica Application Terms

11. 04. 2024

IMPORTANT: Please read these Terms of Service and all other documents referred to herein carefully before you start using the Service. If you do not agree to the Terms or if you do not have the authority to enter into the Agreement, you must not access or use the Service.

1. INITIAL PROVISIONS

1.1. Acceptance. By signing a Service order form, placing an online order for the Service, accessing/using the Service and/or clicking to agree to these terms of service when this option is made available, you agree to be bound by the Agreement. If you are using the Service on behalf of a legal entity, then you, as an individual, represent that you have authority to bind that entity to the Agreement and “Customer” refers to that entity.

1.2. Sanctions. Service is offered to customers who are not a target of any sanction’s regime, and do not reside in, nor will access the Service from a country from which such access is prohibited under any applicable sanction’s regime or export control laws. By using the Service, you represent that you meet all the foregoing requirements. If you do not meet these requirements, you must not access or use the Service. Provider reserves the right to limit the availability of the Service to any person, entity, geographic area, or jurisdiction at any time.

2. DEFINITIONS

2.1. Definitions. Unless otherwise provided herein, the meaning of capitalized words is stated in Annex A hereto.

3. ACCESS

3.1. Users. Users fall into one or more of the following categories:

3.1.1. “Administrators” who may configure the Service and manage activities of Authorized Users, permit Authorized Users to join, and manage the Subscription plan.

3.1.2. “Authorized Users” who use the Service as part of any paid Subscription plan purchased by the Customer.

3.2. Access. Safetica shall create the initial administrator account and provide the access details to the Customer together with a certificate of active Subscription. Using the administrator account, the Customer may create additional administrator accounts. Login to administrator account is conditional on acceptance of the Terms and third-party terms linked to Microsoft Active Directory Account. User may be required to update such consent in the event of an update to the Terms.

3.3. MSP Authorization. If the MSP (Managed Services Provider) provides the Subscription, by using the Service the Customer agrees with and declares that it is aware of special authorizations of MSP to enter into the Service via a tool provided by Safetica in the form of SaaS (Software as a Service), especially but not limited to MSP authorizations to: (i) view the data stored or accessible via Service, (ii) process the data stored or accessible via Service and (iii) set and change the Customer interface of Service. In such a case it is sole responsibility of the Customer as a personal data controller to agree with MSP on the terms of processing of personal data and on other rights and obligations connected with the access of MSP to the data of the Customer according to relevant legal regulations (in particular in the field of personal data protection); in any case Safetica is not liable for the fulfillment of these obligations or for the processing of data between the MSP and the Customer.

3.4. Commissioning. In case of hosting the Service on Customer’s own hosting platform (on-premise), the Customer shall commission the Service in accordance with the Documentation. To commission the Service, the Customer must arrange all organizational conditions, hardware and basic software necessary to operate the Service in accordance with the current System Requirements. Unless the Customer purchases the necessary Professional Services, the Provider does not have to provide assistance with commissioning of the on-premise platform. Any such assistance is available only if the Customer grants a remote access to Customer Systems to the Provider. Once the Customer confirms that the Service has been commissioned properly, or if the Customer does not report any defects within three days after receiving the access details to the administrator account, this constitutes Customer’s acceptance of the proper commissioning of the Service. Further, acceptance of the proper commissioning of the Service occurs if the Customer begins to use the Service beyond its testing.

4. SERVICE

4.1. Use. Subject and conditioned on Customer’s and Authorized Users’ compliance with the Agreement and payment of the relevant fees, the Provider grants the Customer a non-exclusive, non-transferable right to use the Service during the Subscription term, solely for securing the Authorized Users in accordance with the Agreement. Such use is limited to Customer’s internal use.

4.2. Software. To fully use the Service, it is necessary to install the Endpoint software on all Endpoints on which Authorized Users’ activity is to be secured (see Technical Documentation). Use of the Endpoint software is governed by the License Terms. License Terms also apply to the use of Safetica software hosted on Customer’s own infrastructure (on-premise).

4.3. Reservation of Rights. Except for section 4.2., nothing in the Agreement grants any license or other right to any intellectual property rights in or relating to the Service, or Third-Party Materials. All rights to the Service and the Third-Party Materials are and will remain with Safetica and the respective rights holders. By entering into the Agreement or by creation of such data, the Customer assigns to the Provider all rights relating to the Resultant Data. Provider reserves the right to make changes to the Service that Provider deems necessary or useful to comply with applicable law, enhance the quality of Service, cost efficiency or performance.

4.4. Suspension, Termination. Provider may suspend, terminate, or otherwise deny Customers, Authorized Users’ or any other person’s access to or use of the Service, without incurring any resulting obligation or liability, if:

4.4.1. Customer receives a judicial or governmental request or order that requires Customer to do so, or becomes aware that a governmental or other authority has enacted a new, or modified an existing, law, rule, regulation, interpretation or decision that would make performance of any part of the Agreement unlawful or otherwise illegal,

4.4.2. Customer or any Authorized User has failed to comply with the Agreement or used the Service beyond the scope of rights granted or for a purpose not authorized under the Agreement; or that Customer or Authorized Users has been, or is likely to be involved in fraudulent or unlawful activities, or

4.4.3. Customer does not pay the fees when due, or Provider receives a chargeback. Chargeback will be considered a breach of payment obligations under the Agreement. Provider reserves the right to dispute any chargeback received and to take reasonable steps to restrict Customer’s future access to the Service if it believes that Customer has maliciously requested a chargeback.

5. RESTRICTIONS

5.1. Terms of Use. Customer may not, and may not permit any other person to, access or use the Service except as expressly permitted by the Agreement and, in case of Third-Party Materials, the applicable third-party license terms. Customer shall not in particular, but not exclusively:

5.1.1. make the Service available to anyone other than Authorized Users or use the Service for the benefit of anyone other than the Customer or its Affiliates,

5.1.2. rent, sublicense, re-sell, assign, distribute, time share, or similarly exploit the Service (including allowing its employees or employees of its Affiliates to access the Service as guests instead of acquiring Authorized User Subscriptions for such employees),

5.1.3. reverse engineer, copy, modify, adapt, or hack the Service,

5.1.4. access the Service, the Documentation, or Provider confidential Information to build a competitive product or service or to perform comparative or other testing of the Service and to publish the output of such a testing or to make the results accessible by third party; or

5.1.5. allow Subscription to be shared or used by more than one individual Authorized User (except Subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Service for any purpose), bypass or breach any security used by the Service or access or use the Service other than by an Authorized User using its own then valid access credentials,

5.1.6. upload, transmit, or otherwise provide to or through the Service, any information or materials that are unsolicited advertisements or content (i.e., “spam"), unlawful or contain or activate any harmful code (software, hardware, or other technology, including malware, the purpose or effect of which is to permit unauthorized access to, disrupt or otherwise harm any computer, software, hardware, or network; or prevent any other customer or Authorized User from accessing or using the Service),

5.1.7. use the Service excessively, it is prohibited to dispatch robotized emails or perform other automated use via a secured Endpoint of Authorized User.

5.1.8. damage, disable, interfere with, or otherwise harm the Service, or Provider’s provision of Service, or

5.1.9. access or use the Service in manner or for purpose that infringes any intellectual property right or other right of any third party or that violates any applicable law.

5.2. Users. Right to use the Service is limited in quantity by the maximum number of Authorized Users. Customer is not entitled to use the Service at any one time to secure more users than the agreed limit of Authorized Users. Unless the Customer removes the Authorized User by a functionality available in the Service as described in the Documentation (provided that upon such removal, the user’s activity will not secured by the Service), the following users and accounts count towards the number of Authorized Users:

5.2.1. the Microsoft Active Directory account imported to the Service; the account may be imported manually by the administrator or automatically when a new user is added to Customer’s organization,

5.2.2. any other user account detected on the Endpoint; detected means that the account performed an action that is monitored by the Service, e.g., copied a file; the detected accounts may include service accounts that are used for administration and maintenance only (including non-Active Directory accounts), and

5.2.3. accounts or users to which the Customer assigned a subscription.

5.3. Subscription Operations. Unless otherwise agreed, the following rules for Subscription operations shall apply:

5.3.1. Customer may enquire adding Authorized Users to its Subscription plan or upgrade in its Subscription plan at any time by ordering such increase; increase is effective immediately and the increased fees are prorated accordingly.

5.3.2. Decrease in number of Authorized Users and downgrade is effective as of the 1st day of the following Subscription term (in case of renewal); it is not possible to decrease the number of Authorized Users during the Subscription term (regardless of the Subscription period).

5.3.3. when additionally purchasing an add-on or Professional Services; the Customer must procure the same total number of Authorized Users for an add-on / Professional Service as it has procured for the Service.

5.4. Fair Use Policy. Customer may: (i) use the Service only by to the extent that is reasonable in relation to the ordered number of Authorized Users, (ii) install the Endpoint software only on a number of Endpoints that is reasonable in relation to the maximum number of Authorized Users; at most, the Customer may install the Endpoint software on three times the number of Endpoints per each Authorized User (1 user may have more devices - desktop, PC, laptop), (iii) not use the Service excessively; excessive consumption of the Service may be identified with reference to significant variations from the average consumption by comparable customers (e.g. by number of emails or documents processed). If the Customer intends to use the Service beyond the scope of the previous sentence, it shall order an upgrade in the Subscription, or if such upgrade is not available, contact Provider and negotiate in good faith with the intention to increase the scope. Unless the parties agree otherwise within 30 days of the day when the Customer is found to have used the Service in excess, the Customer will pay Provider the fees for such excessive use calculated as the amount of such excess in percentage multiplied by the fees of currently effective most expensive Subscription plan of the same Subscription term.

5.5. Trial. Provider may provide the Customer with a trial version of the Service. Unless otherwise agreed, the Service shall be provided free of charge for a maximum amount of amount of 20 users and a period of 30 days. Within the trial period, the Customer may not change the Authorized Users (termination of Authorized User within the free version of the Service does not make space available for another Authorized User). Provider is not liable for any defects in the Service, or any damage caused by the use of the Service if Customer uses the trial version.

5.6. NFR. Provider may provide the Customer with NFR ("Not for Resale") version of the Service. NFR version may be revoked by Safetica at any time with immediate effect without giving any reason, in particular if it is not used for more than 30 days.

6. CUSTOMER OBLIGATIONS

6.1. Corrective Action. If the Customer becomes aware of any actual or threatened activity prohibited by the Agreement, the Customer must, and must cause its Authorized Users to, immediately take all reasonable measures within their respective control that are necessary to stop the activity and to mitigate its effects (including by discontinuing and preventing any unauthorized access to the Service and erasing data to which any of them have gained unauthorized access) and notify Provider of any such actual or threatened activity.

6.2. Customer Responsibility. Customer is solely responsible for:

6.2.1. meeting the current System Requirements and other requirements set out in the Documentation; if the Customer does not meet the requirements, the Service may not function properly or at all,

6.2.2. legality of processing of Customer Data. In particular, the Customer is responsible for ensuring that it is entitled to provide all Customer Data and that such use and processing of by the Provider and Safetica in accordance with the Agreement does and will not infringe any third-party rights, in particular intellectual property rights or privacy rights or obligations under any law or regulation. Customer must inform the persons whose personal and other data is transferred to Provider of such transfer and must obtain consent to such transfer of personal data where necessary. If Safetica is not the contracting party, it is the sole responsibility of the Customer, as the data controller, to negotiate with the Provider the terms and conditions of the processing of personal data and other rights and obligations related to the Safetica’s access to the Customer Data; Safetica shall in no case be liable for the fulfilment of these obligations or for the processing of data between the Provider and the Customer. Furthermore, it is the Customer's sole responsibility to enter into an agreement with the Provider which will regulate the terms and conditions of the performance of the activities referred to in section 3.3 by the Provider;

6.2.3. use, security, and protection of access details from unauthorized use; and

6.2.4. all access to and use of the Service through Customer’s systems or the access details, including all results obtained from such access or use and all conclusions, decisions and actions based thereon.

6.3. Security Policy. Customer shall comply with Safetica's recommended best practices for securing the Service. Best practices are published online by Safetica in the Technical Documentation. Customer shall be liable for any damage caused to itself, the Provider or third parties that would not have occurred if the best practices had been followed.

6.4. Updates, Requirements. Customer understands that System Requirements may change because of updates. Provider shall not be liable for any defects or errors resulting from failure to comply with the current System Requirements. Customer shall promptly install all updates to the Endpoint software when they are published or made available to the Customer. Updates to the Endpoint software are usually notified directly in the user interface of the Service, from which they are also accessible. Provider shall not be liable for any damage caused by the Customer using an outdated version of the Endpoint software.

7. FEES AND PAYMENT

7.1. Fees. Any price list published by the Provider is not-binding. Provider may change the price, institute new fees, or increase the fees for renewal term by providing written notice to the Customer prior to the commencement of such renewal term. The obligation to pay the fees is not tied to the actual use of the Service. Unless expressly set forth herein, all fees are non-cancelable and non-refundable.

7.2. Subscription. Service is offered on a Subscription basis. Subscription fees are based on monthly, annual, or multiyear periods that begin on the Subscription Start Date and anniversary of the Subscription Start Date (in case of renewal). Subscriptions are sold in tiers based on the number of Authorized Users and other factors. Unless otherwise agreed:

7.2.1. In case of annual and multiyear Subscription periods, the Provider reserves the right to calculate the total number of Authorized Users on a periodic basis, and, if such number exceeds Customer’s current Subscription plan size, Provider reserves the right to invoice Customer for the tier that corresponds to the number of Authorized Users on a pro rata basis for the remaining months in Customer’s then-current Subscription term. Invoices are issued prior to the date of renewal and are due no later than on the last day of the previous Subscription term. Initial invoice is issued on the effective date of the order. Initial invoice shall include the price for SLA (if ordered) for the entire Subscription term.

7.2.2. In case of monthly Subscription periods, Provider shall invoice the Customer for the actual number of Authorized Users (calculated daily as the maximum number of Authorized Users in the given day) on a pro rata basis. However, the Customer shall always be invoiced at least for the number of Authorized Users as agreed in the Order form. If the Customer does not use this number of Authorized Users, this shall not affect Provider’s right to payment of the fees in full. Invoices are issued around the 5th day of the month for the previous month and are due 14 days after the date of the invoice. Monthly price for SLA (if ordered) will be invoiced together with the Subscription.

7.3. Taxes. All fees and other amounts payable by the Customer are exclusive of taxes and similar assessments. Unless explicitly stated otherwise, the fees do not include VAT which shall be paid by the Customer on top of the stated amounts. Without limiting the foregoing, the Customer is responsible for sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the Customer hereunder.

7.4. Payment. In case of payments made via Stripe payment gateway, the Customer agrees to the terms and conditions of Stripe services available at https://stripe.com. Payment instructions will be displayed to the Customer in immediately after the order is submitted. Provider will issue and send the invoice to the Customer after the order confirmation. In case of Subscription term renewal and payment for excessive use, the fees will be charged automatically to the last payment method selected by the Customer.

7.5. Late Payment. If the Customer fails to make any payment when due, then in addition to other remedies, the Provider may charge interest on the past due amount at the rate of 0.5% per each commenced day of delay or, if lower, the highest rate permitted under applicable law. Customer shall reimburse Provider for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

8. CONFIDENTIALITY, DATA PROTECTION

8.1. Confidential Information. In connection with the Agreement each party as a “Disclosing Party” may disclose or make available Confidential Information to the other party as a “Receiving Party”. “Confidential Information” is any information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing. Confidential Information does not include information that:

8.1.1. was known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;

8.1.2. was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement;

8.1.3. the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

8.2. Protection. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

8.2.1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; and

8.2.2. except as may be permitted, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under Section 6; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth therein.

8.3. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, the Receiving Party may disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. To the extent permitted by applicable Law, the Receiving Party shall notify the Disclosing Party in writing of such requirement.

8.4. Term. Each Party's obligations under this Section 6 will last throughout the Agreement term and for five years thereafter; provided, however, with respect to any confidential information that constitutes a trade secret, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such confidential information remains subject to trade secret protection under applicable law.

8.5. Data Protection. Safetica's processing of personal data is governed by the Terms of Personal Data Processing. To ensure transparency, the Provider hereby informs the Customer that Safetica will process its e-mail address for the purpose of sending information about new versions of the Service, technical problems, ensuring the functionality of the Service and other communications related to the operation of the Service. The legal basis will be the performance of the contractual obligations between Safetica and the Customer and Safetica's legitimate interest in ensuring the proper functioning of the Service. For this purpose, Safetica will process personal data for the duration of the Agreement. In particular, the Customer may have the right to object and request access to the personal data in accordance with the relevant legislation. For more information, please refer to the Terms of Personal Data Processing.

9. REPRESENTATIONS AND WARRANTIES

9.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that execution of the Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party.

9.2. Provider Limited Warranty. Provider warrants that for a period of 30 days from the Subscription Start Date the Service will perform materially as described in the Documentation. The foregoing warranty does not apply, and Provider strictly disclaims all warranties, with respect to any Third-Party Materials. The warranty does not apply and becomes null and void if Customer breaches the Agreement, or if Customer, any user, or any other person provided with access to the Service by the Customer: (i) uses the Service in connection with any hardware or software not specified in the Documentation; (ii) damages the Service; (iii) fails to promptly install all updates that the Provider has previously made available to the Customer; or (iv) misuses the Service, including any use of the Service other than as specified in the Documentation. Remedy. If, during the period specified herein the Service fails to comply with the warranty and such failure is not excluded from warranty, Provider shall, subject to Customer promptly notifying Provider in writing of such failure, at Provider’s sole option, either: (i) repair or replace the Service, provided that Customer provides Provider with all information Provider requests to resolve the reported failure, including sufficient information to enable the Provider to recreate such failure; or (ii) refund the Subscription fees paid for such Service or part thereof, subject to Customer ceasing all use of the Service. If Provider repairs or replaces the Service, the warranty will continue to run from the Subscription Start Date.

9.3. Customer Additional Warranties. Customer represents and warrants to Provider that the Customer owns the necessary rights and consents relating to Customer Data so that, as received by Provider and Safetica and processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.

9.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 9.1 AND 9.2, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICE, OR BE ACCURATE, COMPLETE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. Services does not replace the need to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

9.5. Support. During the Subscription term, the Provider shall provide the Customer with support at the standard level in accordance with Annex B hereto. The price for provision of support at the standard level is included in price of the Subscription.

10. INDEMNIFICATION

10.1. Provider Indemnification. Provider shall indemnify the Customer from and against damages awarded against the Customer in a final non-appealable judgment arising out of any claim by a third party (other than an Affiliate of the Customer) that Customer’s use of the Service (excluding Customer Data and Third-Party Materials) in accordance with the Agreement infringes such third party’s copyrights. The foregoing obligation does not apply if the alleged infringement arises from:

10.1.1. Third-Party Materials or Customer Data,

10.1.2. access to or use of the Service in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation,

10.1.3. failure to timely implement any measures made available to the Customer by or on behalf of Provider, or

10.1.4. act, omission, or other matter described in sections 10.3 a) – c).

10.2. Mitigation. If the Service is, or in Provider’s opinion is likely to infringe third-party intellectual property right, or if Customer’s use of the Service is enjoined, Provider may, at its option and expense:

10.2.1. obtain the right for the Customer to continue to use the Service materially as contemplated by the Agreement;

10.2.2. modify or replace the Service to make it non-infringing, while providing materially equivalent functionality, in which case the modifications or replacements will constitute Service under the Agreement; or

10.2.3. by written notice to the Customer, terminate the Agreement with respect to all or part of the Service and require the Customer to immediately cease any use of the Service or any specified part or feature thereof.

10.3. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and Provider Affiliates, and each of its respective officers, directors, employees, and agents from and against any and all loss, damage, claim, action, judgment, settlement, interest, penalty, fine, costs, or expenses, including attorneys’ fees and the costs of enforcing any right to indemnification hereunder incurred resulting from any action by a third party that arise out of or result from, or are alleged to arise out of or result from:

10.3.1. Customer Data, including any processing of it by or on behalf of Provider in accordance with the Agreement;

10.3.2. Customer’s breach of any representation, warranty, or obligation; or

10.3.3. negligence or more culpable act or omission (including recklessness or willful misconduct) by any user or third party on behalf of the Customer, in connection with the Agreement.

10.4. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified. The party seeking indemnification (“Indemnitee”) shall cooperate with the other party (“Indemnitor”) at the Indemnitor’s cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any action without Indemnitee’s prior written consent. If the Indemnitor fails or refuses to assume control of the defense of such action, Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action, in each case in such manner and on such terms as the Indemnitee may deem appropriate. Indemnitee’s failure to perform any obligations under this Section 10.4 will not relieve the Indemnitor of its obligations under this Section 10.

10.5. Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE OR ANY SUBJECT MATTER OF THE AGREEMENT INFRINGES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTY.

11. LIABILITY

11.1. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL THE PROVIDER, OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER THE CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2. CAP ON MONETARY LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE PROVIDER AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED 100 % THE TOTAL AMOUNTS PAID TO THE PROVIDER UNDER THE AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000 WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11.3. Third Party Materials. If a Third-Party Material is included in the Service, the terms of use of which also apply if it is provided as part of the Service, the use of this Third-Party Material shall be governed by the applicable terms and conditions of the third-party provider, available at https://go.safetica.com/third_party_notices.

12. TERM AND TERMINATION

12.1. Term.

12.1.1. the Agreement is concluded for an indefinite period. Termination of the Agreement also means termination of any currently effective Subscription.

12.1.2. initial Subscription term commences on the Subscription Start Date and unless terminated earlier pursuant Agreement’s express provisions, will continue for the agreed Subscription term.

12.2. Renewal. Except for Subscription to software hosted on Customer’s own infrastructure (on-premise), the Subscription term will automatically renew for additional successive Subscription term of the same length as the previous one unless earlier terminated pursuant to the Agreement’s express provisions or either party gives the other party written notice of non-renewal at least on the last day of the then-current term. The notification must be made in writing by e-mail sent to the Provider's contact person, or via the relevant section of the administrator account in the Service. Each renewal term is subject to payment of relevant fees.

12.3. Termination. In addition to any other express termination right set forth in the Agreement:

12.3.1. either party may terminate the Agreement effective on written notice to the other one, if the other one materially breaches the Agreement and such breach is incapable of cure, or remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach, and

12.3.2. Provider may terminate the Agreement, effective on written notice, if: (i) Customer fails to pay any amount when due hereunder, (ii) Customer breaches any obligations, warrant or restriction under Sections 5 or 6, (iii) a force majeure event that prevents the Provider from performing its obligations under the Agreement lasts longer than 30 days; or (iv) Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors; or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.3.3. Provider may terminate the Agreement without a cause effective on expiry of 30 days termination notice.

12.4. Effect. Upon expiration or termination of the Agreement, except as expressly otherwise provided herein:

12.4.1. rights and licenses granted by Provider hereunder will immediately terminate,

12.4.2. Provider may destroy and permanently erase all Customer Data, provided that, for clarity, this obligation does not apply to any Resultant Data,

12.4.3. Customer shall immediately cease all use of the Service and within 15 days, Provider may disable Authorized Users access to the Services,

12.4.4. if Provider terminates the Agreement pursuant to section 10.2.3 or Customer terminates the Agreement pursuant to section 12.2.1 Customer will be relieved of obligation to pay the Subscription fees attributable to the period after the effective date of such termination, in all other cases all fees that would have become payable had the Agreement remained in effect until expiration of the current Subscription term will become immediately due and payable, and Customer shall pay such fees, together with all previously accrued but not yet paid fees. If Provider is unable to charge them automatically to the payment method Customer last selected, Customer will pay the amount on receipt of Provider’s invoice therefor.

12.5. Surviving Terms. The rights and obligation of the parties in the Agreement that, by nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement.

13. FINAL PROVISIONS

13.1. Entire Agreement. Agreement constitutes parties sole and entire agreement with respect to its subject matter and supersedes all prior and contemporaneous agreements, with respect to such subject matter. In the event of a conflict between the documents constituting the Agreement, the documents shall apply in the following order: (i) order form, (ii) these terms of service, (iii) annexes to these terms of services, (iv) remaining documents in order of their appearance in the terms of service.

13.2. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under the Agreement, without prior written consent of the other party, provided that Provider may assign the Agreement as a whole without Customer’s prior written consent to any Provider Affiliate.

13.3. Force Majeure. In no event will Provider be liable for any failure or delay in performance of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond its reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, cyber-attack (including DDoS), invasion, embargoes, strikes, passage of law, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

13.4. Changes. Provider may revise and update the Terms from time to time in its sole discretion. All changes are effective on the indicated date and apply to all access to and use of the Service thereafter. Changes in the terms of service will be notified to the Customer by email or by an announcement in the Service. If the Customer does not agree to a change, the Customer may terminate the Agreement effective on 30 days’ notice, which shall commence on the first day of the calendar month following the delivery of the written notice, provided that the notice must be delivered to the Provider prior to the effective date of the change. In the event of notice under this section, the then current terms of service shall apply for the duration of the notice period. Continued use of the Service following the date of effectiveness of the change means that the Customer accepts and agrees to the changes. Customer is expected to check the Terms from time to time so it is aware of any changes, as they are binding on the Customer.

13.5. Notices. All requests, notices or other messages designated for the other Party shall be delivered to the other Party’s seat at the address stated in the last message received by the Party from the other Party, stated on the other Party’s website or which is registered with the other Party in a public register unless the Terms in a specific case provide otherwise. The requirement of written form is met if the electronic text with a simple electronic signature is delivered to the e-mail address of the other party, or by other electronic means agreed by the parties.

13.6. Non-solicitation. During the Subscription term and for subsequent 2 years, the Customer shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person) for employment or engagement as an independent contractor any person employed or engaged by the Provider or by Safetica. Parties shall not request or advise any of the existing clients, customers, or suppliers of the other Party to withdraw from, terminate, restrict, or cancel their cooperation with the other Party.

13.7. References. Provider is entitled to place the business name, logo, trademark, or any other trade designation of the Customer onto its website into the references section and use it in all its references marketing materials. If Safetica is not the contracting entity, the Customer shall grant this authorization to Safetica as well.

13.8. Protection of Goodwill. Customer shall protect the goodwill of Safetica, and the Service, in particular but exclusively, it shall not disclose false information about Safetica, or the Service. Customer shall not disclose truthful information that is misleading or deceptive under the circumstances of disclosure. Customer shall act so as not to damage the reputation of Safetica, or the Service by its conduct.

13.9. Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, parties shall negotiate in good faith to modify the Agreement to effect the original intent to the greatest extent possible.

13.10. Changes. Provider shall be entitled to modify the Terms to the extent reasonably possible, in particular to the extent of limitations on the Permissions, system requirements, warranties and liability for defects, choice of law provisions, jurisdiction of arbitration courts and tribunals, all in particular in the event that the licensing terms for third party intellectual property included in the Software change, privacy legislation changes, Provider's suppliers' prices change or Safetica develops a new version of the Service. Provider shall notify the change of the Terms on its website, electronically to the last known email address of the Customer through which it communicated with the Provider or through the Service. If the Customer does not reject the change of the Terms within 1 month from the date of sending the notice to the Customer, the Customer accepts the changed Terms. In the event that the Customer rejects the amended Terms within the aforementioned period, the last Terms agreed by both Parties shall apply for the remaining term of the Agreement. If Safetica is not the Provider directly, Safetica may also send notice of the amended Terms to the Customer on behalf of the Provider.

13.11. Governing Law; Jurisdiction. Parties undertake to resolve any disputes between the Parties amicably in the first instance. If no amicable settlement is reached, then depending on the Provider contracting entity, the following governing law and dispute resolution variations set out below, shall apply:

Provider contracting entity	The governing law, without regard to its principles of conflict of laws, is:	Any claim or dispute shall be resolved by:
Safetica Inc.	laws Delaware, the United States of America	Any legal suit, action, or proceeding arising out of or related to the Agreement will be resolved exclusively by courts in the state of New York, United States of America which shall have exclusive jurisdiction to settle the dispute.
Safetica Partner seated within the USA	laws Delaware, the United States of America
Safetica a.s.	laws of Czech Republic	Any legal suit, action, or proceeding arising out of or related to the Agreement will be resolved exclusively by arbitration. Unless otherwise provided by the Parties, the arbitration proceedings shall be held in English. Parties agree that the arbitration proceedings and the matters associated therewith shall be deemed confidential. Each Party shall bear its own costs of the arbitration. The arbitration shall be conducted as follows: a) where the amount claimed does not exceed CZK 200,000 on the day of filing the action, the dispute shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic according to its Rules by one arbitrator appointed by the President of the Arbitration Court. The arbitration proceedings shall take place in Prague. b) claims above CZK 200,000 shall be finally decided in accordance with the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration proceedings shall take place in London.
Safetica Partners seated outside of the USA	laws of Czech Republic

13.12. Effectiveness. These terms of use shall be effective as of the date set forth in the heading of the and shall supersede in its entirety the prior versions.

ANNEX A: DEFINITIONS

Affiliate	of a person is any person that controls, is controlled by, or is under common control with, such person. The term “control” (“controlled by”) means the power to direct or cause direction of management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise
Agreement	Is the agreement on use of the Service entered into between the Customer and the Provider. Agreement includes the Terms.
Authorized User	Is Customer’s employee, consultant, contractor, or agents whose activity is secured by the Service under the rights granted to the Customer pursuant to the Agreement
Customer	Is the person or legal entity who purchased the Subscription and for whom Safetica has generated the certificate of active Subscription.
Customer Data	are data, instructions, materials, and other content that is provided by Customer or user, or that Provider or Safetica receives by or through the Service. Customer Data does not include Resultant Data.
Customer Systems	means Customer’s information technology infrastructure, including computers, software, databases, and networks, whether operated directly by Customer or using third-party services.
Disclosing Party	Is defined in section 8.1
Documentation	are documents describing the features of the Service, requirements for its use, integration, configuration, support, or maintenance. Non-exhaustive list of documentation includes the Price List, System Requirements, Technical Documentation, and other documents available on the Website.
Endpoint	Is a single PC, server or mobile device including a tablet with the supported operating system.
License Terms	are the license terms available online at https://www.safetica.com/legal.
MSP	Is the Provider who provides agreed services for the Customer via specialized access in the Service, see section 3.1.
Professional Services	Are described in section 1.1 of Annex A.
Provider	is the contracting party providing the Service under the Agreement. This may include Safetica or Safetica Partner.
Receiving Party	Is defined in section 8.1
Resultant Data	is data and information related to Customer’s use of the Service that is used by Safetica in an aggregate and anonymized manner.
Safetica	means Safetica a.s., a company incorporated under the laws of the Czech Republic, ID number: 25848666, with registered office at Laubova 1729/8, Vinohrady, 130 00 Prague 3, registered in the Commercial Register at the Municipal Court in Prague under the Commercial Register No. B 27205.
Safetica Partner	Is a person or legal entity authorized to provide the Customer with the Subscription other than Safetica. This person may be a distributor, partner, reseller, or another person, that had been granted an appropriate authorization from Safetica. A list of the main Partners is published at https://www.safetica.com/partners. Provided that the party is not found in this list, we recommend enquiring with Safetica whether the party is or is not a Safetica Partner.
Service	is the Safetica cloud-based security solution provided as a service (SaaS). Service is offered in various Subscription plans which offer various features, data retention periods, numbers of Authorized Users, and other functionality. Detailed information on the Subscription plans is available in the Price List.
Subscription	is the access to Service acquired by Customer on a per Authorized User basis.
Subscription Start Date	Is the day on which the Service is made available to the Customer. Subscription Start Date may be agreed in the order form or stated in the certificate of active Subscription generated by Safetica. If the Customer obtained a trial License to the Software, it shall not receive a certificate; in such a case the Subscription Start Date is the date when the trial period expires.
System Requirements	Are the requirements as described in the Technical Documentation.
Technical Documentation	is the documentation available at https://support.safetica.com/en/knowledge-base.
Terms	Include these terms of service, the privacy policy, the terms of personal data processing, the License Terms and all other documents referred to herein. Currently effective version of the Terms is available at https://www.safetica.com/legal.
Third-Party Materials	are materials, documents, data, products, services, or software that are provided by Safetica, including open-source software. A non-exhaustive list of Third-Party Materials is available on the Website.
Website	Is the website www.safetica.com

ANNEX B: SLA

1. SUPPORT SERVICES

1.1. Levels of Support. Customer may order Professional Services in accordance with the support terms available at https://www.safetica.com/legal. Professional Services include, among other, implementation, health check, premium SLAs, extended support and guaranteed response times. Unless the Customer orders such a premium SLA, the Customer shall be provided with standard support in accordance with terms and conditions of this annex. All support requests beyond the scope of standard support in accordance with this annex may be subject to the payment of support fees to Safetica.

2. ELIGIBILITY

2.1. Eligibility. Unless the parties agree otherwise, then depending on the ordered product and hosting platform, the following eligibility criteria for standard support provision shall apply:

Product	Support shall be provided for:
Safetica cloud Subscription	Support shall be provided for the Subscription term.
Safetica on-prem hosting platform with perpetual license	Support shall be provided for the period of 1 year from the Subscription Start Date. To extend the support term, the Customer must purchase a maintenance extension. Unless the parties agree on a different price for maintenance extension, the price shall be equal to 25% of the price of the perpetual license per each year of support. If the Customer does not purchase the maintenance extension, the Provider may disable the cloud security functionality.
Safetica on-prem Software	Safetica provides the support only for the last major version of the software. Safetica reserves the right to end-of-life any version of the Safetica on-prem software other than the latest version issued by Safetica on notice. If Safetica ends the life of any software and the parties do not make an individual agreement on further support of such software, then Safetica shall no longer support such software. Customer shall not be entitled to any refund, even in case of perpetual license.

3. SCOPE OF STANDARD SUPPORT

3.1. Reporting. Error reports shall include all information required by the form available under section 3.1.1. Customer may report errors to the Provider via:

3.1.1. submitting a ticket at https://support.safetica.com/en/knowledge-base/kb-tickets/new

3.1.2. Safetica Partner, partner can be found via locator at: https://www.safetica.com/find-safetica-partner

3.2. Priority. For purpose of the Agreement, an error means the failure of the Software to perform in substantial conformity with its applicable Documentation. Provider will prioritize the errors using the following severity levels:

3.2.1. Business Critical – the Software is non-operational and requires immediate resolution.

3.2.2. Degraded Service – the Software is operational, but a significant feature or function is not operating properly.

3.2.3. Minor Issue – the Software is operational with problems or errors that have little or no impact.

3.3. Reaction Time. Within 2 business days from receiving the error report, the Provider shall notify the Customer about the priority assigned to the error. Provider will reasonably often provide status updates until the error is resolved. Provider does not guarantee any resolution time for the error.

3.4. Updates. Provider reserves the right to issue updates of the software as and when required by way of a local fix or patch of the software or a temporary by-pass solution in its absolute discretion. Customer is obliged to promptly install all such updates that relate to software which are made available to the Customer. Provider is however not obliged to issue any updates. For the avoidance of doubt, updates do not include upgrades (new version of the software which contains significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product) which may be subjected to payment of upgrade fees. The update is provided when Provider or Safetica hands over the installation files for the update to the Customer and/or allows the Customer to download it from Safetica’s website or otherwise. Software updates do not include the implementation, installation, neither a setting up of Customer’s operating environment.

3.5. Automatic updates. Customer acknowledges that, with a view to maintaining the quality of the Software, Safetica is entitled to issue automatic updates.