Terms of Service
Last revised on December 1, 2020
Agreement Version 1.0
These Terms of Service (“Agreement“) is a legal agreement between you, either an individual or a legal entity (the “Customer“), and Ekran System Inc. (“Ekran System“), for the access and use of the Product identified below in this Agreement. If you do not agree with the terms hereof, do not access and use the Product.
BEFORE INDICATING CONSENT WITH THIS AGREEMENT, AS WELL AS THE ACCESSING AND USING THE PRODUCT, PLEASE CAREFULLY READ THE TERMS AND CONDITIONS HEREOF, AS SUCH ACTIONS ARE A SYMBOL OF YOUR CONSENT TO BECOME A PARTY TO THIS AGREEMENT AND AGREE THAT THIS TERMS ARE ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS HEREOF, DO NOT INDICATE YOUR CONSENT AND MAKE NO FURTHER ACCESS AND USE OF THE PRODUCT.
1.1. “Affiliates” means affiliates, licensors, suppliers, agents, sponsors, directors, officers, employees, consultants, and other representatives of the Party.
1.2. “Agent” means Ekran System’s proprietary locally installed software for access and use of the Product.
1.3. “Customer Data” means all data, including personal data, collected through the Product from the Customer and its Users or uploaded by them to it in accordance with the setting of the Product set by the Customer, including without limitation setting on different monitoring options, and kinds of data that shall not be collected by the Product.
1.4. “Documentation” means all manuals, guides, and other information materials in any form related to access and use of the Product provided by Ekran System to the Customer.
2.1. Use of the Product. Subject to full and timely payment of the fee set forth in the applicable Order (the “Subscription Fee”), Ekran System grants the Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Users to access and use) the Product, and reproduce and use applicable Documentation for the Customer’s internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order. The Customer shall be responsible for the acts and omissions of the Users.
2.2. Product Revisions. Ekran System may revise Product features and functions at any time, including without limitation by removing such features and functions. If any such revision materially reduces features or functionality provided pursuant to an Order, the Customer may within 30 (thirty) days of notice of the revision terminate such Order, or terminate this Agreement if such Order is the only one outstanding. In such case, Ekran System will provide the Customer, on the Customer’s written request, with a pro-rata refund of the Subscription Fees paid for the period following termination hereof.
2.3. Support & Maintenance. Ekran System shall provide the technical support to the Customer in accordance with Ekran System Support and Maintenance Policy, provided, however, the Customer promptly updates any Agents on the Customer systems interacting with the Product. If any revision to the Ekran System Support and Maintenance Policy materially reduces service levels, the revisions will go into effect beginning 30 (thirty) days after Ekran System posts the revision and so informs the Customer.
2.4. Professional Services. The Customer may purchase from Ekran System, its Affiliates and other partners professional services in relation to the Product as may be made available by Ekran System to its customers.
3. Evaluation period
A commercial or non-commercial entity may use the limited version of the Product without charge for thirty (30) days (the “Evaluation Period”). Ekran System grants the Customer, during the Evaluation Period, a non-exclusive, non-transferable right to access and use the Product for the Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth herein. Any Customer Data and any configurations made to the Product by or for the Customer during the Evaluation Period will be lost unless the Customer: (a) has purchased a subscription to the Product; or (b) has exported such data or configurations before the end of the Evaluation Period. During the Evaluation Period, Ekran System will be under no obligation to provide the Customer any maintenance and support services with respect to the Product.
4.1. Subscription Fee. The Customer shall pay the Subscription Fee for each Subscription Term within 30 (thirty) days of the issuance of the relevant invoice. For late payment, the Customer shall pay a late charge of 1,5% (one-half percent) per month on the unpaid balance or the highest rate permissible under the applicable law, whichever is less. Save for the cases expressly provided for herein, the Subscription Fee is not refundable.
4.2. Applicable Taxes. Amounts due hereunder are payable without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority, including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If the applicable law requires withholding or deduction of such taxes or duties, (1) the Customer will be liable for compliance with reporting and payment of them, and (2) shall separately pay Ekran System the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Ekran System’s net income.
5. Customer data & Privacy
5.1. Customer Responsibilities. The Customer owns all right, title and interest in all the Customer Data. The Customer shall be solely responsible for: (a) the content, quality and accuracy of the Customer Data; (b) notifying the Users regarding what the Customer Data will be collected and how it will be used; (c) ensuring a valid legal basis for processing the Customer Data and for sharing it with Ekran System; and (iv) ensuring that the Customer Data complies with applicable laws and regulations, including without limitation data protection laws.
If the Customer Data is collected through or uploaded to the Product contents personal data relating to an individual located within the European Economic Area processing of such data will be governed by Standard Contractual Clauses which in such case is hereby incorporated hereinto.
5.2. Use of the Customer Data. Unless provided herein or expressly agreed by the Customer, Ekran System: (a) shall not access, process, or otherwise use the Customer Data other than as necessary to fulfil the purposes hereof (the “Purpose”); and (b) shall not grant any third party access to the Customer Data, except employees, advisors, consultants, and agents who need such access in order to facilitate the Purpose (provided, however, that such party is bound by obligations of confidentiality substantially similar to those contained herein).
5.3. Customer Data Security. Ekran System shall ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of the Customer Data, yet the Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Product, the Customer assumes such risks. Ekran System offers no representation, warranty, or guarantee that the Customer Data will not be exposed or disclosed through errors or the actions of third parties.
5.4. Customer Data Deletion. Ekran System may deactivate Customer’s account and delete any Customer Data contained on the Product: (a) upon 30 (thirty) days after the termination of Customer’s Subscription Term; (b) if Customer’s account is delinquent, suspended, or terminated for 30 (thirty) days or more. In these cases, Ekran System shall have no liability for any failure of the Customer to retrieve the Customer Data and no obligation to retain it.
6. Customer’s responsibilities & Restrictions
6.1. Acceptable Use. The Customer, including without limitation its Users, shall not: (a) copy or reproduce the Product or the Documentation, save as permitted hereunder; (b) exceed the quantities, users or other entitlement measures of the Product set forth in the applicable Order; (c) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to the Customer under this Agreement to any third party, save as expressly set forth herein; (d) access the Product in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, reverse engineer or disassemble the Product; (e) modify the Product, or prepare derivative works based upon it; (f) interfere with or disrupt the integrity or performance of the Product; (g) send, store or process in the Product any personal health data, credit card data, personal financial data or other such sensitive regulated data, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State, as well as the defamatory, trade libelous or otherwise unlawful data. In case of any breach (or suspected breach) of the requirements of this Section by the Customer or its Users, Ekran System has the right to suspend Customer’s access to the Product without advanced notice, in addition to such other remedies as Ekran System may have.
6.2. Unauthorized Access. The Customer is responsible for ensuring: (a) that only appropriate Users have access to the Product, and (b) proper usage of passwords, tokens and access procedures with respect to the Product. The Customer shall immediately notify Ekran System of any known (or suspected) unauthorized use of the Product and shall use best efforts to stop such use.
6.3. Suspension of Use. Subject to prior written notice to the Customer, Ekran System may suspend Customer’s access and use of the Product if it reasonably suspects or knows that such access or use is fraudulent or materially and negatively impacting the operating capability of the Product. Ekran System shall promptly reinstate Customer’s access and use once the issue has been resolved.
7. Intellectual property & Feedback
7.1. Intellectual Property Rights to the Product. Save for the rights expressly granted herein, Ekran System, its Affiliates and licensors retain all right, title, and interest in and to the Product and the Documentation. Nothing in this Agreement shall (a) transfer ownership of any intellectual property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.
7.2. Feedback. Ekran System has not agreed to and does not agree to treat as confidential any suggestion or idea for improving or otherwise modifying any of Ekran System’s products or services (the “Feedback”) the Customer or its Users provide to Ekran System, and nothing in this Agreement or in the parties’ dealings arising out of or related hereto will restrict Ekran System’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Customer or the User in question.
8. Confidentiality obligations
8.1. Confidential Information. The “Confidential Information” refers to the following items: (a) intellectual property of the disclosing Party or its Affiliates; (b) all technology, products and services of the disclosing Party or its Affiliates; (c) any technical or technological information which relates to the disclosing Party or its Affiliates; (d) any document marked or information orally designated by the disclosing Party as “Confidential” at the time of disclosure; as well as the (e) other non-public, sensitive information the receiving Party should reasonably consider a trade secret or otherwise confidential.
The Confidential Information does not include information that: (a) is in the receiving Party’s possession at the time of disclosure; (b) is independently developed by the receiving Party without use of or reference to the Confidential Information; (c) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (d) becomes known publicly, before or after disclosure, other than as a result of the receiving Party’s improper action or inaction; or (e) is approved for release in writing by the disclosing Party.
This Agreement does not transfer ownership of the Confidential Information or grant any license thereto. The Parties retain all right, title, and interest in and to all of their Confidential Information.
8.2. Non-Disclosure. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the Purpose and shall not, without the disclosing Party’s prior written consent, disclose such Confidential Information to any third party, except for the employees, advisors, consultants, and agents of the receiving Party who need to know such Confidential Information in order to facilitate the Purpose (provided, however, that such party is bound by obligations of confidentiality substantially similar to those contained herein).
Notwithstanding the foregoing, either Party may disclose the Confidential Information of the other Party as required by applicable law or by a proper authority, provided the Party gives prompt notice of any such demand to such other Party and reasonably cooperates with it, at such other Party’s expense, in any effort to seek a protective order or otherwise to contest such required disclosure.
The receiving Party shall: (a) protect the Confidential Information of the disclosing Party with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care; and (b) promptly notify the disclosing Party of any misuse or misappropriation of the Confidential Information that comes to its attention.
8.3. Termination & Return. With respect to each item of the Confidential Information, the obligations of this Section will terminate 3 (three) years after the date of disclosure; provided that such obligations related to the Confidential Information constituting the disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination hereof, either Party shall return all copies of the Confidential Information of the other Party to such other Party or certify, in writing, the destruction thereof.
The Customer shall defend, indemnify, and hold harmless Ekran System and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Product. Indemnified Claims include, without limitation, the claims: (a) brought by the government entities, and Customer’s Users and Affiliates; (b) related to the Customer Data, including without limitation unauthorized disclosure or exposure of the Customer Data; and (c) concerning violation, misappropriation or infringement of a copyright, trademark, trade secret, caused by the Customer use of the Product.
The Customer’s obligations set forth herein include all directly related losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees and court costs). Ekran System shall have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
10. Warranties and Disclaimers
10.1. From the Customer. The Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations hereunder, and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Product; and (c) it is a corporation, the sole proprietorship of an individual 18 (eighteen) years or older, or another entity authorized to do business pursuant to the applicable law.
10.2. Warranty Disclaimers. The customer accepts the product “as is” and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing Ekran System: (a) has no obligation to indemnify or defend the customer or its users against claims related to infringement of intellectual property; (b) does not represent or warrant that the product will perform without interruption or error; and (c) does not represent or warrant that the product is secure from hacking or other unauthorized intrusion or that customer data will remain private or secure.
10.3. Limitation of Liability. In no event shall Ekran System, or its affiliates be liable to the customer for any consequential, special, incidental, or indirect damages of any kind arising out of the delivery, performance, access or use of the product, and the information contained in or compiled by the product, and the interaction (or failure to interact properly) with any other hardware or software whether provided by the Ekran System or a third party.
To the maximum extent permitted by the applicable law, in no event will the Ekran System or its affiliates be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of data, loss of goodwill, work stoppage, hardware or software disruption impairment or failure, repair costs, time value or other pecuniary loss) arising out of the access or use or inability to access or use the product, or the incompatibility of the product with any hardware software or usage, even if such parties have been advised of the possibility of such damages.
In no event will Ekran System total liability to the customer for all damages in any one or more cause of action, whether in contract, tort or otherwise exceed the amount paid by the customer for the product during the 12 (twelve) month period preceding the date of the claim.
11. Export control
The Customer shall not to: (a) access or use, or permit any third party to access or use the Product and the Documentation in violation of any U.S. law or regulation; (b) export the Product and the Documentation provided by Ekran System, as well as re-export or otherwise remove them from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, the Customer shall not permit any third party to access or use the Product and the Documentation in, or export or re-export such software to, a country subject to a United States embargo.
12. Term and Termination
12.1. Termination. The term of this Agreement (the “Term”) will commence on the date the Customer indicates its consent herewith and continue for the Subscription Term set forth in the applicable Order(s). The Term will renew for each successive period, unless either Party refuses such renewal by written notice at least 30 (thirty) days before the renewal date.
12.2. Termination for Cause. Either party may terminate this Agreement by written notice to the other Party, effective in 30 (thirty) days and such termination will not constitute a breach hereof, if: (a) the other Party materially breaches this Agreement and such breach will not be cured within the reasonable term (in case the breach is not subject to cure, the termination shall be effective immediately); (b) the other Party commences bankruptcy or dissolution proceedings, or has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business; or (c) required to do so under applicable law or regulation.
Ekran System has the right to terminate this Agreement or suspend the Customer’s access or use to the Product or Professional Services provided hereunder upon prior written notice to the Customer if there is a payment overdue by the Customer for more than 10 (ten) days. Ekran System will promptly reinstate Customer’s access and use of the Product or provision of the Professional Services once the issue has been resolved.
12.3. Effects of Termination. Upon termination of this Agreement, the Customer shall cease all use of the Product. The following provisions will survive termination hereof: (a) any obligation of the Customer to pay the fees incurred before termination; (b) Articles and Sections 7 (Intellectual Property & Feedback), 8 (Confidentiality Obligations), 9 (Indemnification), 10 (Warranties and Disclaimers); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
13.1. Independent Contractors. The Parties are independent contractors and shall so represent themselves in all regards. Neither Party is the agent of the other, and neither will have the right, power or authority to obligate or bind the other in any manner whatsoever.
13.2. Notices. Ekran System may send written notices pursuant to this Agreement to the Customer’s email contact points provided by the Customer, and such notices will be deemed received 24 (twenty four) hours after they are sent. The Customer may send notices pursuant hereto to [email protected], and such notices will be deemed received 72 (seventy two) hours after they are sent.
13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
13.4. Governing Law and Jurisdiction. This Agreement and all claims arising out of or related hereto will be governed solely by the internal laws of the State of Delaware, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.
The Parties consent to the personal and exclusive jurisdiction of the state courts of the State of Delaware. This Section governs all claims arising out of or related to this Agreement, including without limitation tort claims.
13.5. Assignment & Successors. The Customer may not assign this Agreement or any of its rights or obligations hereunder without Ekran System’s express written consent. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.
13.6. Entire Agreement & Amendment. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter.
13.7. Severability. To the extent permitted by the applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
13.8. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
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