Our Commitment To Trust, Security, And An Exceptional User Experience
Last Updated: April 25th, 2024
CYBERFOX, LLC (“we,” “us”, or “our”) are pleased to provide you with access to our “Services,” which means, collectively, (i) our proprietary services known as “Password Boss” for password management services and “AutoElevate” for privilege access management services, (ii) our website at https://www.cyberfox.com/ and its related pages and domains, (iii) any email notifications or other mediums, or portions of such mediums, through which you have accessed these Master Terms and Conditions (these “Terms”), and (iv) any software, information, data, and content viewable on, contained in or downloadable from any of the foregoing. These Terms, together with the order form (“Order Form”) submitted by you and any other terms and conditions, policies, and agreements incorporated herein by reference, collectively constitute the “Agreement” and govern your use of the Services and any related support services.
We may change or update these Terms from time to time. If you have an active subscription to the Services, then we will alert you of any material changes via a pop-up message prior to or while you are accessing the Services, or by email at the email address you provide to us for the Services (as updated), at our discretion, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements.
Please read these Terms carefully. You accept these Terms by clicking or signing to accept or agree to these Terms (when this option is made available to you), by submitting the Order Form to us, through use of the Services, or by continuing to use the Services after being notified of a change to these Terms. If you do not agree with these Terms, or any portion of these Terms (including any portion of our Privacy Policy), then you must not access or use the Services.
DISCLAIMER: While the Services are intended to assist you in keeping your Access Credentials (as defined below) and other sensitive information safe, you are ultimately responsible for the security of your Access Credentials and other sensitive information. The Services are not intended to and should not be treated by you as a data-back up service, and you should maintain personal copies of all data and information you submit into or through the Services. USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ARE RESPONSIBLE FOR TAKING ALL APPROPRIATE MEASURES TO PROTECT YOUR OWN DATA, SOFTWARE, EQUIPMENT, AND SYSTEMS. See Section 11(b) (Disclaimer of Warranties) and Section 14 (Limitation on Liability) for important disclaimers and limitations on our liability to which you are agreeing to by accessing or using our Services.
1. PROVISION OF THE SERVICES.
a. You have the Right to Enter into these Terms. As an individual interacting with the Services in your individual capacity or on behalf of an entity, you represent and warrant that you have all right, power and authority to enter into these Terms on your own or such entity’s behalf and bind yourself or such entity, as applicable, to these Terms. If you are entering these Terms on behalf of an entity, all references in these Terms to “you” and “your” will mean such entity.
b. Consideration. You acknowledge that these Terms are supported by reasonable and valuable consideration, which you have received, and which is adequate. Such consideration includes your ability to access, use or interact with the Services. You represent and warrant that you have the capacity to be bound by these Terms.
c. Access to the Services. In consideration of the Fees (as defined below) during the term of the Agreement, we will use commercially reasonable efforts to make the Services available to you and your Authorized Users. For purposes of the Agreement, “Authorized Users” means your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the Services under the rights granted to you pursuant to the Agreement; and (ii) for whom access to the Services has been purchased hereunder. Authorized Users must be subject to confidentiality, use restrictions and intellectual property provisions at least as restrictive and protective of us as those set forth in the Agreement. You and your Authorized Users will access and use the Services solely in accordance with the conditions and limitations set forth in the Agreement and any Services documentation, including any end user license agreement applicable to the Services and/or Technology (as defined below) (“Permitted Use”). The authorization set forth in this paragraph is non-exclusive and non-transferable. You will be solely and exclusively responsible for any breach by your “End Users” which, for purposes of the Agreement, means your Authorized Users and any other persons accessing the Services directly or indirectly through you or your Authorized Users, whether authorized, unauthorized or otherwise in violation of the Agreement, or of any terms contained in any Services documentation. If you are using the Services in your capacity as an Authorized User, you must have authorization to use the Services by your administrator.
d. Downloadable Software. We may make available via the Services certain downloadable tools or other software to facilitate access to, operation of, or use of certain portions of the Services (“Downloadable Software”). Subject to the terms and conditions contained in the Agreement, including our Acceptable Use Policy, we hereby grant you a non-exclusive, non-sublicensable, and non-transferable license to: (i) download the Downloadable Software in accordance with the instructions, installation guides, and any other materials, either electronically or otherwise, that describe the operation, use, or technical specifications of the Services (including the Downloadable Software) or relate to the Services (including the Downloadable Software) (“Documentation”); and (ii) use the Downloadable Software, in object code format, in accordance with the Agreement and the Documentation.
e. Unauthorized Use or Access. You will prevent unauthorized use of the Services by End Users and terminate any unauthorized use of, or access to, the Services. You will promptly notify us of any unauthorized use of, or access to, the Services. Notwithstanding anything to the contrary in the Agreement, if you are contracting with us as an individual, (i) you will not, and will not permit any other person or entity to, access or use the Services or your account with us, (ii) you will only have one account per person, and (iii) you will not share your account with any third-party.
f. Restrictions. Our Acceptable Use Policy is hereby incorporated into these Terms by reference. You will not, and will not permit others (including any End Users) to, directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, including any related or underlying tool, module, software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Services or any Technology, in whole or in part; (iii) access and/or use the Services or any Technology for timesharing or reselling purposes or otherwise for the benefit of a third party (except to the extent that you are an Authorized Reseller (as defined below)); (iv) upload to or otherwise use the Services or any Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use the Services or any Technology to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses; (vi) interfere with or disrupt the integrity or performance of the Services or any Technology (in whole or in part); (vii) attempt to gain unauthorized access to the Services, the Technology or any of their related systems or networks, or access or use the Services or any Technology other than by an Authorized User through the use of his or her own then valid Access Credentials (as defined below); (viii) permit direct or indirect access to or use of the Services or any Technology in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Services (including any Technology); (x) access the Services and/or the Technology (in whole or in part) in order to build a competitive product or service; (xi) remove or alter any end user license agreement or proprietary notices or labels of, on, or from the Services or the Technology; (xii) access or use the Services or any Technology in any way that violates the Agreement, any third-party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”), including, without limitation, all applicable anti-spam, telemarketing, export control, privacy, and anti-terrorism laws and regulations; (xiii) use the Services or any Technology for activities where use or failure of the Services or Technology could lead to physical damage, death, or personal injury; or (xiv) establish a business account with us as an individual for personal, family, or household purposes. You will not during the term of the Agreement and thereafter make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments or statements concerning us or our businesses or affiliates, or any of our or their respective employees, consultants, sales agents, officers, directors, members, managers, principals, owners, representatives and existing and prospective customers, clients, vendors, suppliers, and other associated third parties. The previous sentence does not, in any way, restrict or impede you from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any Law, provided that such compliance does not exceed that required by the Law. You will promptly provide written notice of any such order to one of our authorized officers.
g. Maintenance Releases; New Features. We may from time to time make or issue updates, upgrades, releases, or other adaptations or modifications of the Services in whole or in part (collectively, “Maintenance Releases”). We may also make one or more new versions, features or modules of the Services (in whole or in part) (collectively, “New Features”) available to you under the terms and conditions of the Agreement. Maintenance Releases and/or any New Features made available to you (if any) will constitute a part of the Services for purposes of the Agreement. For the avoidance of doubt, we reserve the right to offer any Maintenance Releases or New Features subject to our then current, commercial pricing for the same. If any Maintenance Release or New Feature requires for its proper and effective use the modification of certain Services settings, Your Data or any other accommodation, affirmative action or update on your part (any such modification, accommodation or affirmative action on your part, “Accommodations”), then we will notate such Accommodations in the relevant release note for such Maintenance Release or New Feature, if and as applicable. You acknowledge and agree that certain Maintenance Releases and/or New Features may require support services for purposes of installation, configuration and/or implementation, which will be subject to your payment of our applicable support service fees then in effect. Despite anything to the contrary in the Agreement: (a) you may choose to use certain beta services (“Beta Services”) in your sole discretion; (b) Beta Services may not be supported and may be changed or terminated at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services are not and have not been subjected to the same security measures and auditing to which the Services have been and are subjected to; and (e) WE WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES AND YOU USE BETA SERVICES AT YOUR OWN AND SOLE RISK.
h. Third-Party Services. You acknowledge and agree that: (i) one or more of the features or functionalities or services available on or via the Services may be made available by third parties (“Third-Party Service Providers” and such functionalities or services, “Third-Party Services”); (ii) the Services and/or certain features or functionalities rely on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of our control, and that as such we will have no liability for downtime caused by API integration failures; (iii) Third-Party Service Providers may impose restrictions on use of the particular Third-Party Service, in addition to other terms and conditions, including without limitation, those set forth in any applicable terms and conditions agreed to by or otherwise made available to you (collectively, “Third-Party Requirements”); (iv) you are solely responsible for compliance with, and will ensure that you and all Authorized Users comply with, all Third-Party Requirements; and (v) we may at any time terminate and/or discontinue any Third-Party Services, including as a result of termination of our relationship with the applicable Third-Party Service Provider, provided that we will endeavor to provide you with advance written notice of any such termination or discontinuation if reasonably practical.
i. No Customization. For the avoidance of doubt, other than our standard customization options available via the internal facing portions of the Services, the Services and any support services will not include any customization of any feature, functionality, product, or other materials available on or via the Services.
j. CyberFOX Password Management (Password Boss). If you are using the personal version of CyberFOX Password Management (Password Boss) and you join a CyberFOX business organization, you must use it in compliance with your organization’s terms and policies. Please note that CyberFOX Password Manager accounts are subject to your organization’s control. Your administrators may be able to access, disclose, restrict, or remove information in or from your CyberFOX Password Manager account. They may also be able to restrict or terminate your access to a CyberFOX Password Manager account. If you convert an existing CyberFOX account into part of a CyberFOX business organization, your administrators may prevent you from later disassociating your account from the CyberFOX business organization.
2. CUSTOMER SUPPORT. We will use commercially reasonable efforts to provide you with customer support for the Services consistent with our customer support policies in effect from time to time. See here for more information on support: https://www.cyberfox.com/resources/support/. We will have no obligation to provide support for Service issues caused by: scheduled or planned maintenance; factors outside of our reasonable control; use of the Services in violation of the Agreement (or our Acceptable Use Policy); force majeure events, including acts of war, acts of God, natural disaster, pandemic, epidemic, health crisis, government act, utility outages, denial of service attacks, failure of communication lines and/or the Internet, and the occurrence of vulnerabilities or exploits which could not have been avoided with commercially reasonable care; your network, technology, hardware and other systems; any third-party equipment, software, or technology; combination, operation, or use of the Services in or with any technology (including any software, hardware, firmware, system, or network) or service not provided by us; your or any third party’s negligence, abuse, misapplication, misuse, or manipulation of or damage to the Services or any of your materials in any respect; or use of older versions of the Services (or failure to install/implement any Maintenance Release or New Feature), web browsers or operating systems or platforms into which the Services will be integrated. Any Results (as defined below) of any of our support services will constitute a part of Our Property subject to the terms and conditions of this Agreement (including Section 7). We will not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by your or your Authorized User’s delay in performing, or failure to perform, any of your obligations under the Agreement or as otherwise reasonably necessary for us to perform any support services.
3. YOUR RESPONSIBILITIES.
a. Creating an Account. To access and use any of our Services, you must set up an account by providing certain information (e.g., your email address, password, billing information, country). All information you provide must be complete, accurate, true to the fact and kept up to date.
b. Cooperation. You will cooperate with us in all respects, including provision of information, access and support as may be reasonably required for purposes of our performance under the Agreement. Without limiting the generality of the foregoing, you will ensure that: (i) your Authorized Users and/or information technology team responds to our requests for information, materials or cooperation promptly and without undue delay, and in any event, within two business days of the request; and (ii) you provide us with reasonable access to appropriate personnel, network, and systems, as reasonably required for purposes of our performance under the Agreement.
c. Access Credentials. You and each Authorized User may be issued or required to create a username, identification number, password, link, or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services (“Access Credentials”). You will ensure that your Authorized Users use strong Access Credentials (i.e., in the case of a password, one that is long, uses a mix of letters (upper and lower case), numbers and symbols, has no ties to the Authorized User’s personal information, and no dictionary words) even if the Services permits simple Access Credentials. You have and will retain sole responsibility for the security and use of all Access Credentials, including for any losses that you or any third party may suffer as a result of the authorized or unauthorized use of any Access Credentials by any third party. We reserve the right to disable any Access Credentials at any time in our discretion for any or no reason, including (without limitation) if, in our opinion, you or any of your Authorized Users has violated any provision of this Agreement.
d. Confidentiality of and Access to Your Account. You agree to accept responsibility and are solely responsible for any and all usage and activities that occur under your account or Access Credentials, including, but not limited to, use of your account by any of your End Users, whether or not authorized by you. You are responsible for maintaining the confidentiality of your account and Access Credentials, and for restricting access to your account by any other party. To protect your account, keep your Access Credentials confidential. Do not reuse your Access Credentials with other services. You agree to immediately notify us of any unauthorized use of your account or Access Credentials.
e. Your Systems; Technical Requirements. You and each of Your Authorized Users are responsible for: (i) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, mobile devices and the like (collectively, “Your Systems”); (ii) maintaining the security of all of Your Systems; (iii) all uses of your account(s) or Your Systems by your End Users; and (iv) acquiring any third party rights, licenses and/or consents necessary to connect to, integrate with, access or otherwise use the Services or any feature, functionality or tool thereof, in whole or in part. You acknowledge and agree that failure to obtain and maintain Your Systems, to meet any applicable technical requirements of or relating to the Services, or to obtain any necessary third-party rights, licenses and/or consents, may cause the Services to (in whole or in part) be unavailable, or function ineffectively or inappropriately. We will in no event be responsible for any downtime, losses, failures or liabilities that arise as a result of your failure to comply with the requirements set forth in this Section. You acknowledge that use of the Services requires one or more compatible devices (messaging rates may apply), Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. High speed Internet access is recommended. You acknowledge and agree that the compliance with the requirements set forth in this Section, which may be changed from time to time, are your responsibility.
f. Your Data. You or your Authorized Users may provide us with certain information and data (including website or platform logins, usernames, passwords, access codes, pin codes, notes, company names, and computer names) and other content or other materials (collectively, “Your Data”). You will ensure (and represent, warrant and covenant) that Your Data as well as your activities in connection with, use of or access to the Services are accurate, complete and do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights. You will be solely and completely responsible for the accuracy, quality and legality of any and all of Your Data, the means by which you acquired Your Data, and the use of the same by you and your End Users. Without limiting the generality of the foregoing, if Your Data includes any personal information of individuals, you will ensure that your and your End Users’ collection and submission into the Services of the same, and your, your End Users’ and our use and storage of the same as contemplated by the Agreement does not violate any third party rights, and otherwise complies with Laws, including, without limitation, any telemarketing Laws or Laws relating to the consent of or disclosure to consumers with respect to the collection, use or disclosure of such information as contemplated by the Agreement. If we receive information indicating, or otherwise reasonably believe, that all or any portion of any of Your Data or use of the Services in connection therewith may violate Laws, any third-party rights or otherwise could reflect poorly on us or negatively impair our goodwill (in each case, in our sole and absolute discretion), we may so notify you and, if you fail to remove or modify the relevant portion of Your Data from the Services within two business days, then we may delete the relevant portion of Your Data from the Services. Under no circumstances will we be liable in any way for any: (i) of Your Data transmitted or viewed while using the Services; (ii) errors or omissions in Your Data; or (iii) loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any of Your Data.
g. Compliance with Laws. You acknowledge and agree that the Services do not guaranty your compliance with any applicable Laws, including, without limitation, Laws relating to privacy of consumer information, and that your compliance with applicable Laws is ultimately your sole and exclusive responsibility.
h. Certain Acknowledgements. You acknowledge and agree that: (i) the Services may have defects or deficiencies that may not be corrected by us and are subject to change at our sole discretion; and (ii) using the Services does not create a joint venture, or any other relationship between us (or any of our affiliates) and you.
4. DATA SECURITY.
a. Security and Your Data. See here for more information on our security measures: https://www.cyberfox.com/company/trust-center/. While we will employ technical and organizational security measures with respect to the Services in accordance with applicable Laws and standard industry practice, you acknowledge and agree that the Services do not guaranty protection or security of Your Data and protection and security of Your Data is ultimately your sole and exclusive responsibility. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND FOR ANY LOSS OF OR ERRORS IN ANY OF YOUR DATA OR YOUR INFORMATION. In addition, we cannot be held liable for unpredictable events such as cyber-attacks, security breaches regarding the transmission of data or for performance guarantees regarding the volume and speed of data transmissions. You are responsible for taking all appropriate measures to protect your own data, software, equipment, and systems, particularly from contamination by any viruses circulating on the internet. We will endeavor to provide you with advance prior notice if we update our security measures in a manner that materially diminishes the administrative, technical, or physical security features of the Services taken as a whole.
b. Data Backup. You acknowledge and agree that storage of Your Data on the Services will be subject to our or our hosting provider’s storage limits. Additionally, you acknowledge and agree that the Services do not and are not intended to replace the need for you to maintain regular data backups or redundant data archives. Notwithstanding the foregoing, subject to our data storage and/or retention policies and practices and those of our hosting providers, we will use commercially reasonable efforts to cause the Services to perform routine data backups, excluding however, any data obtained from or located on the Services as a result of Third-Party Services. In the event of any loss, destruction, damage, or corruption of any of Your Data caused by the Services, we will, as our sole obligation and liability and as your sole remedy, use commercially reasonable efforts to restore Your Data from our then-most current backup of such materials. In the event of any loss, destruction, damage, or corruption of any of Your Data caused by you, on mutual agreement between us and you, you may engage us to use commercially reasonable efforts to restore such materials from our then-most current backup of such materials, subject to charge at our then current rates.
c. Your Security. You will employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) prevent unauthorized access to or use of the Services, and will notify us promptly of any such unauthorized access or use; (ii) securely administer the distribution and use of all Access Credentials and Your Data and protect against any unauthorized access to or use of the Services, Access Credentials and Your Data; and (iii) control the content and use of Your Data.
d. Services and Systems Control. Except as otherwise expressly provided in the Agreement, as between you and us: (i) we have and will retain sole control over the operation, provision, maintenance, and management of the Services and the Technology; and (ii) you have and will retain sole control over the operation, maintenance, and management of, and all access to and use of Your Systems.
5. TERM AND TERMINATION.
a. Term and Termination for Individuals. If you are contracting with us as an individual, then unless otherwise set forth in a separate written agreement with us, the term of our Services is month-to-month and will continue and automatically renew until terminated and if you terminate your paid subscription to the Services, you typically will be permitted to use your subscription until the end of your then-current subscription month.
b. Term and Termination for Business Accounts. If you are contracting with us on behalf of a business entity, then the following terms apply:
- Subject to earlier termination as provided below, the Agreement is for the term specified in the Order Form and will automatically renew for additional periods of the same duration, unless sooner terminated as set forth in the Order Form or these Terms.
- Either we or you may terminate the Agreement: (i) by providing notice of non-renewal at least 30 days’ prior to the end of the then-current term of the Agreement; (ii) immediately, by providing written notice, of a material breach of the Agreement that is not capable of cure or, if capable of cure, is not cured within thirty (30) days of receipt of written notice of such breach; (iii) upon written notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iv) as otherwise expressly set forth in the Agreement. We may terminate the Agreement if you fail to pay us any Fees within 15 days after we provide you with written notice of nonpayment.
c. Discontinuation of the Services. Notwithstanding anything to the contrary in the Agreement, we may decide to discontinue the Services in response to unforeseen circumstances beyond our control or to comply with a legal requirement. If we do so, we will provide you with notice so that you can export Your Data from our systems. If we discontinue the Services pursuant to this Section 5(c) before the end of any fixed or minimum term you have paid us for, then we will refund the portion of the Fees you have pre-paid but have not received Services for.
d. Effect of Termination. On termination of the Agreement for any reason: (i) you will pay all Fees for access to the Services provided up to and including the effective date of termination; (ii) the rights and licenses granted by us to you will cease immediately and you will lose access to Your Data stored on the Services as of the effective date of termination (and so we strongly recommend that you download the same prior to terminating your account, if applicable), and we may (but need not) following the effective date of termination delete Your Data from the Services; (iii) you will within 14 days of the effective date of termination return or certify the permanent destruction of all of our Confidential Information (as defined below) in your possession or under your control; and (iv) prior to termination, you may request reasonable additional time to export Your Data, provided that we may charge you for such extended access based on our then-current standard rates. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
e. Suspension of Access. We may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny your or any of your End User’s access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (i) you fail to pay any amount when due under the Agreement, and such failure continues for five (5) days or more after the relevant due date; (ii) we believe, in our sole and absolute discretion, that you or any of your End Users: (x) have failed to comply with any term of the Agreement; (y) have accessed or used the Services beyond the scope of the authorization granted or for a purpose not authorized or intended under the Agreement or in any manner that does not comply with any of our instructions or requirements; or (z) are, have been, or are likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on us or negatively impair our goodwill (in each case, in our sole and absolute discretion); (iii) the Agreement is terminated or expires; or (iv) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so. This paragraph does not limit any of our other rights or remedies whatsoever, including any rights or remedies at Law, in equity or under the Agreement.
f. No Refunds. EXCEPT AS EXPRESSLY SET FORTH IN THE APPLICABLE ORDER FORM OR THESE TERMS, ALL PAYMENTS OF FEES ARE NON-REFUNDABLE, AND THERE ARE NO REFUNDS OR CREDITS FOR UNUSED OR PARTIALLY USED SUBSCRIPTIONS OR SERVICES, EVEN IF YOU CANCEL YOUR SUBSCRIPTION OR SERVICE IN THE MIDDLE OF THE TERM.
6. FEES AND PAYMENT.
a. Fees. You will pay us the applicable fees as described in the Order Form, or as described on our Services if you are contracting with us as an individual, for your subscription to the Services (the “Fees”).
b. Payment Terms. You agree that we (and/or our third-party payment processor) may charge your credit card, bank account, or other payment method or mechanism, selected by you and approved by us, all amounts due and owing to us hereunder, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with your account with us. All amounts payable to us under the Agreement will be paid by you in full without setoff or withholding for any reason, other than a deduction or withholding of tax as may be required by applicable Law. Undisputed unpaid amounts (and disputed amounts ultimately determined to be payable to us) are subject to a finance charge of 10% per month on any outstanding balance (and if you are using features “Blocker” or “Just-in-Time-Login” you may be charged a higher cost depending on your plan in the Order Form), or the maximum permitted by Law, whichever is lower. In the event we are unable to collect amounts you owe to us hereunder, we may take any other steps we deem necessary to collect, and you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
c. Changes to Fees. We may increase Fees at any time and from time to time and will communicate any Fee changes to you in advance, provided, that, if you are under a business agreement with us, then the subscription Fees for the Services will be as set forth in the applicable Order Form for the initial term. Unless otherwise agreed to in writing by the parties, following the initial term, subscription Fees will be at our then-current commercial rates, and your continued use of the Services will constitute your acceptance of such Fees. If you do not agree to a Fee change, you can reject the change by terminating your account prior to the Fee change going into effect.
d. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You will be responsible for all Taxes associated with your purchase of access to the Services, other than U.S. taxes based on our income.
e. Future Functionality. You acknowledge and agree that your entrance into the Agreement is not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written public comments made by us regarding any such future functionality or features unless otherwise noted on the Order Form.
f. Free-Trial Offers. We may from time to time make all or certain portions of the Services available at no charge (“Free Trials”). If you register for one or more Free Trials, you acknowledge and agree that you may have limited access to the Services and/or features thereof. See Section 19 for additional terms and conditions applicable to Free Trials.
7. OWNERSHIP AND LICENSES.
a. Ownership. You (or your licensors, as applicable) will own all right, title and interest in and to Your Data. We or our licensors will own and retain all right, title and interest in and to the following (collectively, “Our Property”): (i) the Services, the Technology, and all improvements, enhancements or modifications to any of the foregoing; (ii) any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with any support services (“Results”); (iii) the “CyberFox”, “Password Boss”, or “AutoElevate” names, brands, marks and other similar intellectual property; (iv) any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your End Users relating to the subject matter of the Agreement (collectively, “Feedback”); (v) any and all performance data, test or evaluation results, or other metrics derived from the Services, including Aggregated Data (as defined below); and (vi) all intellectual property rights related to any of the foregoing. We expressly reserve all other rights in and to the foregoing. During and after the term of the Agreement, each party will cooperate with the other to do any and all things which are reasonably necessary or desirable to establish, maintain, protect and enforce a party’s exclusive ownership of the property identified in this Section.
b. Use of Data. Notwithstanding anything to the contrary, and to the extent not prohibited by Law, we will have the right to collect and analyze Your Data and other information relating to the provision, use and performance of various aspects of the Services and Technology (including, without limitation, Your Data and data derived therefrom), and will be free (during and after the term of the Agreement) to: (i) use such information and data to improve and enhance the Services (in whole or in part) and for other development, diagnostic and corrective purposes in connection with the Services, the Technology and/or our other product or service offerings; and (ii) use and disclose such information and data solely in aggregate or other de- identified form in connection with our business without disclosing your identity, or the identity of any of your individual Authorized Users (“Aggregated Data”). No rights or licenses are granted except as expressly set forth herein.
c. Feedback. Any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by us (whether alone or together with you or any other third party or parties) arising out of or relating to Feedback are and will remain our sole and exclusive property.
8. PRIVACY.
a. We use the information you provide on or via the Services as set forth in our Privacy Policy. Our Privacy Policy is hereby incorporated into these Terms by reference. If and when applicable law requires that we enter into a separate data processing agreement with you, then we will work with you to provide such agreement.
9. ELECTRONIC COMMUNICATION.
a. By using the Services, you agree to allow us to communicate with you electronically, and you consent to electronic delivery of notices, documents, and other materials from us or the Services or via e-mail. If you are a registered user, you also agree to check your account for alerts and messages, and the e-mail account reflected on your account on a reasonably regular basis to stay apprised of important notices and information about your account.
10. CONFIDENTIALITY.
a. Confidential Information. “Confidential Information” means any and all confidential or proprietary information of the Disclosing Party (as defined below) or of a third party and held by the Disclosing Party on a confidential basis, including, without limitation, protected personal information, documents, reports, analyses, data, studies, drawings, samples, suppliers, vendors, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, technology, methods, procedures, software (including all documentation and code), hardware and system designs, architectures and protocols, trade secrets, know-how, and observations, whether disclosed orally or in writing, whether or not marked as “confidential,” and whether disclosed or made available to the Receiving Party before, on or after the date of the Agreement. Our Confidential Information includes Our Property and the terms, but not the existence of, the Agreement. Your Confidential Information includes non-public data provided by you or your Authorized Users to us or via the Services. “Disclosing Party” means the party disclosing or making available the Confidential Information. “Receiving Party” means the party receiving or accessing the Confidential Information.
a. Exclusions from Confidential Information. The term “Confidential Information” does not include information that, as evidenced by the Receiving Party with written documentation: (i) is or becomes publicly available after disclosure to the Receiving Party without breach of any obligation owed to the Disclosing Party or any third party; (ii) was lawfully received by the Receiving Party from a third party without obligation of confidentiality owed to the Disclosing Party or any third party; (iii) was known to the Receiving Party prior to its receipt from the Disclosing Party without obligation of confidentiality owed to the Disclosing Party or any third party; or (iv) was independently developed by the Receiving Party without use or reference to Confidential Information and without breach of the Agreement.
b. Exclusions from Confidential Information. The term “Confidential Information” does not include information that, as evidenced by the Receiving Party with written documentation: (i) is or becomes publicly available after disclosure to the Receiving Party without breach of any obligation owed to the Disclosing Party or any third party; (ii) was lawfully received by the Receiving Party from a third party without obligation of confidentiality owed to the Disclosing Party or any third party; (iii) was known to the Receiving Party prior to its receipt from the Disclosing Party without obligation of confidentiality owed to the Disclosing Party or any third party; or (iv) was independently developed by the Receiving Party without use or reference to Confidential Information and without breach of the Agreement.
c. Confidentiality Obligations. The Receiving Party will: (i) use commercially reasonable efforts to safeguard Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (ii) use Confidential Information for the sole purpose of performing its obligations or exercising its rights under the Agreement (and in our case, as otherwise set forth in these Terms and/or our Privacy Policy); and (iii) restrict disclosure of Confidential Information to those of its owners, members, managers, officers, directors, employees, professional advisors, contractors, agents and representatives with a need to know such information for the sole purpose of performing its obligations or exercising its rights under the Agreement (and in our case, as otherwise set forth in these Terms).
11. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
a. Representations. We will use commercially reasonable efforts consistent with prevailing industry standards to perform and maintain the Services in a manner which minimizes errors and interruptions in the Services. In the event of a breach by us of the foregoing, your sole remedy will be to exercise your termination rights hereunder.
b. Disclaimer of Warranties. You acknowledge that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control. We will use commercially reasonable efforts to provide advance notice of any scheduled service disruption and to reinstate the Services. HOWEVER, WE DO NOT WARRANT OR GUARANTY THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY OR GUARANTY THAT THE SERVICES OR ANY SUPPORT SERVICES WILL CONTINUE TO BE PROVIDED, OPERATE WITHOUT INTERRUPTION, FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, MEET YOUR, ANY CUSTOMER’S, OR ANY OTHER PERSON’S REQUIREMENTS OR EXPECTATIONS, ACHIEVE ANY PARTICULAR OR INTENDED RESULT, INCLUDING DATA BACKUP, COMPLETE PROTECTION OF, OR SECURITY OF, YOUR DATA OR YOUR SYSTEMS OR YOUR COMPLIANCE WITH ANY APPLICABLE LAWS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, THE SERVICES (INCLUDING THE TECHNOLOGY) AND ALL SUPPORT SERVICES ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. ALL THIRD-PARTY SERVICES INCLUDED IN THE SERVICES OR ANY SUPPORT SERVICES ARE PROVIDED “AS IS” AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY SERVICE PROVIDER. WE WILL IN NO EVENT BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES, OR ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF, ANY OF YOUR, OR A THIRD PARTY’S, MATERIALS OR DATA.
12. INDEMNIFICATION. You will indemnify, defend and hold us harmless from and against any and all claims, losses, damages, judgments, liabilities, costs, and expenses (including attorneys’ fees and the costs of enforcing this provision and of pursuing any insurance providers) arising from or relating to: (i) any of Your Data, including any use, disclosure or storage of the same by us or on our behalf in accordance with the Agreement; (ii) our compliance with any specifications or directions provided by you or any of your End Users or on your or their respective behalf’s; (iii) your failure to comply with any applicable Laws; (iv) your or any of your End Users breach or violation of any obligations, covenants, representations and warranties set forth in the Agreement (including our Acceptable Use Policy); or (v) your or any of your End Users access to or use of the Services.
13. INFRINGEMENT MITIGATION. If all or any portion of the Services and/or the Technology is, or in our opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if your use of the Services or the Technology is in whole or in part enjoined or threatened to be enjoined, then we may, at our option and sole cost and expense: (a) replace or modify the Services (in whole or in part) so as to make the Services (as replaced or modified) non-infringing, while providing substantially similar features and functionality, and in which case such replacements or modifications will constitute a part of the Services for purposes of the Agreement; (b) obtain for you a right to continue using the Services as materially contemplated by the Agreement; or (c) if neither of the foregoing is commercially practicable in our sole discretion, terminate the Agreement (or your rights to access and use the infringing component of the Services) and provide you with a refund of any prepaid, unused fees for the Services or the infringing component, as applicable. THIS SECTION 13 SETS FORTH YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, OR ANY TECHNOLOGY OR SUPPORT SERVICES OR OTHER MATERIALS PROVIDED BY OR MADE AVAILABLE BY US UNDER THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. LIMITATION ON LIABILITY; MUTUAL WAIVER OF CLASS ACTION PARTICIPATION.
a. IN NO EVENT WILL WE OR ANY OF OUR 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: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (IN WHOLE OR IN PART); (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE 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.
b. IN NO EVENT WILL OUR, AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, COLLECTIVE AGGREGATE LIABILITY 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, EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THE AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF YOU HAVE NOT PAID US FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. Neither we nor you may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. WE AND YOU ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
d. FORCE MAJEURE. Except for a party’s obligations to pay Fees, each party will be excused from performance of its obligations for any period and the time of performance will be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under the Agreement, as a result of acts of God, any governmental authority, war, pandemic, epidemic, health crisis, government order or lockdown, civil disturbance, court order, labor dispute or any other cause beyond its reasonable control, including, in our case, Third-Party Service malfunctions (such as interruption of Third-Party Service services or functions), hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment or network outside of its reasonable control (“Force Majeure Events”).
16. NOTICES. Except as otherwise set forth in these Terms, all notices, demands, requests or other communications which may be or are required to be given, served, or sent by a party to the other party pursuant to the Agreement will be in writing and will be delivered electronically to the email addresses set forth below. Either party may change its email address for notice by notifying the other parties of such change in accordance with this Section.
If to you: to the email address set forth on the Order Form or your account with us.
If to us: to Legal@CyberFOX.Com, marked to the Attention of “Legal Notice”.
17. OUR REMEDIES. You acknowledge that we may be irreparably damaged if the Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of the Agreement by you, we will be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach (without being required to show any actual damage or to post an injunction bond) or to a decree for specific performance of the provisions of the Agreement. You agree that (notwithstanding Section 18 below) we may bring any action or proceeding with regard to such injunction restraining such breach or threatened breach or such specific performance of the provisions of the Agreement in a state or federal court located in Hillsborough County, Florida. You consent to personal jurisdiction over you by such court and to the exclusive jurisdiction of such court, and waive any objection to the laying of venue of any such action or proceeding in such court.
18. GOVERNING LAW; ARBITRATION. The Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Florida without regard to conflict of law principles. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to the Agreement or to the rights or duties of the parties under the Agreement. To expedite resolution and control the cost of any dispute, controversy, or claim related to the Agreement (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Except as otherwise provided herein, if the Parties are unable to resolve a Dispute through informal negotiations, the Dispute will be finally and exclusively resolved by binding arbitration, except that you or we may assert claims in small claims court in Hillsborough County, Florida or any United States county where you reside (or such other location as you and we mutually agree to in writing), if your or our claims qualify. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Hillsborough County, Florida. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. Judgment on the award may be entered in any court having competent jurisdiction.
Unless the Parties agree otherwise in writing, in the event that any provision of this Section is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Hillsborough County, Florida. You and we will submit to the personal jurisdiction of the courts located within Hillsborough County, Florida for the purpose of litigating all such claims or disputes.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the fullest extent permitted by Law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
The prevailing party in any Dispute shall be entitled to recovery of its reasonable attorney’s fees and costs.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. FREE TRIALS. Notwithstanding anything to the contrary in the Agreement, you acknowledge that Free Trials may be provided for evaluation or other related purposes and, therefore, may contain bugs or errors, and will be subject to additional terms (including those set forth below).
a. We may discontinue Free Trials (in whole or in part) at any time in our sole discretion and may never make them generally available.
b. We may provide customer support in respect of Free Trials in our commercially reasonable discretion. Without limiting the generality of the foregoing, we make no promises or guarantees to provide customer support or if provided, any particular level of customer support, with respect to any Free Trials.
c. Our entire liability to you, and your sole remedy in connection with any Free Trials (including, without limitation, any defects or non-performance of any Free Trial) is for you to terminate your use of the Free Trial. WITHOUT LIMITING THE APPLICATION OF ANY OTHER LIMITATIONS OF LIABILITY APPLICABLE TO YOUR USE OF THE SERVICES OR ANY SUPPORT SERVICES PROVIDED BY US HEREUNDER, IN NO EVENT WILL OUR, AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH ANY FREE TRIAL, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $25.00. THE FOREGOING LIMITATION APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. RESELLER TERMS AND CONDITIONS. The following terms and conditions are applicable to the extent that you have purchased, and we have agreed to provide you with, a right to resell any of our Services in accordance with the terms and conditions of the Agreement (“Authorized Reseller”):
a. We may in our sole discretion directly or indirectly sell our Services to any other person, including resellers (who or may or may not compete with you), retailers, and end users anywhere in the world.
b. You agree to sell subscriptions to the Services only in accordance with the Agreement (including the Order Form) to end users (such end users, “Customers”), meaning not to any person for re-sale, including, without limitation, other distributors, retailers, or any other person who/which you know or should know intends to re-sell or sublicense any such subscriptions (in whole or in part). Resales in violation of the Agreement including specifically, but without limitation, this Section are strictly prohibited, are considered an incurable material breach of the Agreement, and may result in immediate termination of the Agreement, in addition to all other available remedies to us. Furthermore, subscriptions to Services sold to unauthorized persons or through unauthorized channels may not be eligible for certain support and/or benefits, and unless prohibited by Law, coverage under any applicable warranties provided by us.
c. Except for the limited rights expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel or otherwise, to you or any third party (including any Customer) any intellectual property rights or other right, title or interest in or to any of Our Property. All uses in the Agreement of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price,” and the like mean the purchase or sale of a subscription to the Services under the Agreement. Nothing in the Agreement grants or conveys, or permits you to grant or convey, any ownership right in any of Our Property.
d. You will not: (i) make any false or misleading representations or warranties to any Customer regarding us or the Services; (ii) make any representations or warranties to Customers regarding the specifications, features, or capabilities of the Services that are inconsistent with the Documentation or other materials provided by us; (iii) engage in any unfair, anti-competitive, misleading, or deceptive practices regarding us or the Services, including Our Property; (iv) make any modifications to the Services, including labels or names, or market, distribute, or sell the Services other than in the form as delivered by us under the Agreement; or (v) resell the Services to any federal, state, or local government or political subdivision or agency thereof, without express written approval from us. As an Authorized Reseller, you agree to follow any and all instructions and any other Documentation that we provide.
21. SERVICE LEVEL AGREEMENT. We will use commercially reasonable efforts to: (i) provide at least 99.9% of uptime for the Password Boss and/or AutoElevate platforms (“Service Level Availability”), except for scheduled downtime or Force Majeure Events, and (ii) limit scheduled downtime so that disruption to you or your business is minimized.
If you believe that we have failed to maintain Service Level Availability for a particular month and wish to receive a Service Credit (as defined below), then you must notify us within ten (10) business days following the end of the month in which the failure occurred. Service level claims will be verified against our system’s records, which will prevail in any conflict with your records.
The following events shall be excluded from the calculation of Service Level Availability: (i) a Force Majeure Event; (ii) scheduled downtime; (iii) outages based on Your Systems or your domain name server issues; (iv) your configuration, scripting, or coding without our authorization or knowledge; (v) internet outages; (vi) outages requested by you; (vii) changes to your environment which hinder our Services (or software as a service production); (viii) outages to remedy a security vulnerability or as required by Law; and (ix) your inability to log in to the Services because of your dependence on third party services or components that are not provided by us.
Subject to the procedures in this Section, in the event of a verified Service Level Availability failure, we will provide you with an account credit for one day’s current fees (calculated as the annual contract value paid by you divided by 365) for each one full percent (1%) of platform unavailability in such month below the Service Level Availability percentage (“Service Credits”). Service Credits in any month will not exceed twenty-five percent (25%) of monthly fees (calculated as the daily fee described above multiplied by 30) and will be applied in the month following the applicable platform unavailability only. Receipt of Service Credits will be your sole and exclusive remedy for any failure or interruption of the platforms, except, however, in the event we fail to meet Service Level Availability in three (3) or more months minimum in any given twelve (12) month period, and you provide us with notice in writing of same, then you will also have the right to terminate the Agreement for an uncurable material breach as set forth in the Agreement. You may redeem Service Credits for cash only in the event of termination of the Agreement before the credits can be utilized, in which case the amount of credits due shall be provided in the form of a refund to you.
22. MISCELLANEOUS. You may not assign the Agreement without our prior written consent. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. No delay or omission by us to exercise any right or power under the Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by us in any one instance of any of the covenants, conditions or agreements to be performed by you will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. Except as otherwise provided in the Agreement, we may update, amend or change these Terms at any time. If you have an active subscription to the Services, then, unless we are launching a new service or feature, or in urgent situations, such as preventing ongoing abuse or responding to legal requirements, we will notify you of any material changes electronically, via a pop-up alerting you of the change prior to or while you are accessing your account or the Services, or by email, in our discretion. Amendments will take effect immediately on delivery of such notice or such later date as communicated in such notice. Your continued access and use of the Services following delivery of such notice will automatically be deemed your acceptance of all updates, changes and/or amendments. The headings contained in the Agreement are for convenience of reference only, are not to be considered a part of the Agreement and will not limit or otherwise affect in any way its meaning or interpretation. The Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person (including your customers or clients) any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of the Agreement. If any provision of the Agreement is found by any court, arbitrator, or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement, which will remain in full force and effect. The Agreement, together with the Order Form and any other terms and conditions, policies, and agreements incorporated herein by reference), represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representations (if any) made by and between such parties, whether orally or in writing. The Order Form may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by electronic transmission signature page or other electronic execution means will be binding, and each party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution.