CYRAL SERVICE TERMS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE OFFERED BY CYRAL INC. (“CYRAL”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”) OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU OR THE ENTITY THAT YOU REPRESENT (“YOU” OR “CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE SERVICE TERMS CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THE “AGREEMENT”) WITH RESPECT TO THE SERVICE, TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. PROVISION OF THE SERVICE IS CONDITIONED ON, AND CUSTOMER’S INSTALLATION OR USE OF THE SERVICE SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. SCOPE OF SERVICE AND RESTRICTIONS
1.1 Access to and Scope of Service. Subject to Cyral’s receipt of the applicable Fees with respect to the service(s) specified in the corresponding Order Form (the “Service”), Cyral will use commercially reasonable efforts to make the Service available to Customer as set forth in this Agreement and the Order Form. Subject to Customer’s compliance with the terms and conditions of the Agreement and the Order Form, Customer may access and use the Service during the period specified in the Order Form and solely in accordance with the Entitlement. Any such use of the Service by Customer is authorized solely for Customer’s internal business and is subject to Customer’s compliance with the Entitlement and any additional limitations and restrictions specified in the Order Form.
1.2 Entitlement. Customer’s use of the Service shall at all times be limited and subject to the use limitation and authorizations specified in the corresponding order confirmation email from Cyral (the “Order Confirmation”) or each Order Form (each, the “Entitlement”). The Entitlement shall include use limitations such as, but not limited to: a specific unit of measure such as data processed or number of requests (the “Authorized Units”); the number of authorized users of the Service (the “Authorized Identities”)); and the duration of the Service (the “Authorized Period”).
1.3 Trial Access. If Customer is accessing or making use of the Service on a trial basis (the “Limited Use”), Customer may use the Service provided that such use does not to exceed the use period or Service levels specified on the Cyral website or the corresponding Order Confirmation or Entitlement, if any. Customer acknowledges and agrees that the Limited Use is provided on an “as-is” basis, and notwithstanding anything to the contrary in this Agreement, the Limited Use is provided without any indemnification, support, or warranties or representation of any kind. Additionally, Customer acknowledges and agrees that Cyral may terminate the Limited Use at any time and for any reason or modify the applicable terms by publishing a notice on the Cyral website.
1.4 Restrictions. Customer will use the Service only in accordance with all applicable laws, including, but not limited to, laws related to data (whether applicable within the United States, the European Union, or otherwise). Customer agrees not to (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available; (ii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; or (iii) rent, resell or otherwise allow any third party access to or use of the Service.
1.5 Ownership Cyral retains all right, title, and interest in and to the Service, and any software, products, works or other intellectual property created, used, provided or made available by Cyral under or in connection with the Service. Customer may from time to time provide suggestions, comments or other feedback to Cyral with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Cyral a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use, modify, copy and distribute the Feedback in connection with Cyral’s products and services. Nothing in this Agreement will impair Cyral’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
1.6 Software Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable Fees, to the extent Cyral makes Cyral proprietary software available to Customer, Cyral hereby grants to Customer, and Customer hereby accepts from Cyral, a limited, non-exclusive, non-transferable, non- assignable and non-sublicensable license to: run such software solely as necessary to make use of the Service. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in this Agreement; (b) make copies of the software; (c) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 1; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the software; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the software or copies thereof.
1.7 Customer Data and Personal Data. Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data; (c) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any third party; and (d) backing up and maintaining Customer Data. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Cyral may (i) internally use and modify Customer Data to provide the Services and any support or consultation services to Customer, and generating Aggregated Data (as defined below), and (ii) freely use and make available Aggregated Data for Cyral’s business purposes (including without limitation, for purposes of improving, operating, and marketing Cyral’s products and services). “Aggregated Data” means data submitted to, collected by, or generated by Cyral in connection with Customer’s use of the Service, but only in aggregate, de-identified form which is not linked specifically to Customer or any individual. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer, not Cyral, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Cyral agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail at https://cyral.com/trust/. Cyral’s security measures will include: (i) Building our product and services on top of secure infrastructure; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification. Customer hereby represents and warrants that it will not provide or make available to Cyral any Customer Data subject to the EU General Data Protection Regulation (the “GDPR”) or other applicable law or regulation with respect to data privacy. Cyral may retain Customer Data for up to thirty (30) days following the termination or expiration of the corresponding Order Form; thereafter, Customer acknowledges that Customer Data may be irretrievably deleted.
1.8 Support. Subject to Customer’s payment of the corresponding fees, Cyral will use commercially reasonable efforts to provide Customer the Cyral support service specified in the Order Form or Order Confirmation.
1.9 Service Suspension. Cyral may suspend Customer’s access to or use of the Service as follows: (a) immediately if Cyral reasonably believes Customer’s use of the Service may pose a security risk to or may adversely impact the Service; (b) following thirty (30) days written notice if Customer is in breach of this Agreement ; or (d) Customer has failed to pay Cyral the Fees with respect to the Service.
1.10 Embedded Reporting, Compliance Routine; Data Access and Use. Customer acknowledges that the Service and/or software may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Service and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Cyral; this includes, without limitation, information on usage that Cyral uses for billing purposes. Cyral will be entitled to inspect the installation and configuration of the Service and systems from time to time on reasonable notice. Cyral will be free to use for development, improvement, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so.
2. FEES, ORDER FORMS
2.1 Fees. Customer shall pay to Cyral the fees as set forth in each applicable Order Form(s) (collectively, the “Fees”). Customer acknowledges that it shall have no right to return or cancel the Service and that all Fees shall be non-refundable. All amounts payable to Cyral under this Agreement shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Notwithstanding any other rights of Cyral, in the event of late payment by Customer, Cyral shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less. If Cyral is required to initiate legal action due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such fees.
2.2 Order Forms. Customer may place Order Forms for additional Services or to extend the term of the existing Service by specifying such order details in an Order Form agreed to in writing by the parties referencing the terms and conditions of this Agreement.
2.3 Taxes. Any and all payments made by Cyral in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Cyral for all value- added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Cyral. All amounts payable to Cyral under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the Effective and unless terminated earlier according to this Section 3, will end on the last day of the term specified in a last Order Form (the “Term”). Each Order Form will renew automatically at the end of the applicable term unless either party provides to the other advance written notice with respect to non-renewal at least ninety (90) days prior to the end of the then current term.
3.2 Termination for Breach. This Agreement, including all Order Forms hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party; or (b) by Cyral upon written notice to Customer if Customer has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, or has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days.
3.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Cyral Confidential Information and Cyral provided software. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated by Cyral pursuant to Section 3.2 (a), Customer shall pay to Cyral all of the Fees for the entire term set forth in the corresponding Order Form(s).
3.4 Survival. The following provisions will survive termination of this Agreement: Sections 1.5 (Ownership), 3.3 (Effect of Termination), Section 3.4 (Survival), Section 4 (Confidentiality), Section 5.1 (Indemnification by Customer), Section 7 (Limitation of Liability), Section 8 (Miscellaneous).
4. MISCELLANEOUS
4.1 Export Control. Customer hereby certifies that Customer will comply with all current US Export Control laws. Customer agrees to defend, indemnify and hold Cyral harmless from any liability for Customer’s violation of U.S. Export Control laws.
4.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Cyral from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Cyral arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.
4.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Cyral may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.
4.4 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.
4.5 Independent Contractor. Cyral is an independent Contractor and both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Cyral.
4.6 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Purchase Order Form issued under this Agreement.
5. INDEMNIFICATION
5.1 Indemnification by Customer. Customer will defend, indemnify, and hold Cyral, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.
5.2 Indemnification by Cyral. Cyral will defend, indemnify, and hold Customer harmless from and against any third party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Service directly infringes or misappropriates a third party’s United States intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Cyral shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Service; (b) the combination of any products or services, other than those provided by Cyral to Customer under this Agreement, with the Service; or (c) non-discretionary designs or specifications provided to Cyral by Customer that caused such Infringement Claim. Customer agrees to reimburse Cyral for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.
5.3 Notice of Claim and Indemnity Procedure. In the event of a claim for which a party seeks indemnity or reimbursement under this Section 5 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 7, the provisions of this Section 5 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 5, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.
6. WARRANTY
6.1 Warranty. The Service, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable specifications will perform, in all material respects, the functions described in the Cyral’s then current user documentation with respect to the Service (the “Specification”), during the term in the corresponding Order Form.
6.2 Exclusive Remedies. Customer shall report to Cyral, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in this Section 6. In the event of a breach of warranty by Cyral under this Agreement, Customer’s sole and exclusive remedy, and Cyral’s entire liability, shall be prompt correction of any material non-conformance in Order Form to minimize any material adverse effect on Customer’s business.
6.3 Disclaimer of Warranty. Cyral does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Cyral, except as expressly specified in the applicable Specification. CUSTOMER ACKNOWLEDGES THAT, EXCEPT FOR THE SET FORTH IN SECTION 6.1, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND FROM ANYONE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, CYRAL DOES NOT WARRANT RESULTS OF USE OR THAT THE SERVICE ARE BUG FREE OR THAT THE SERVICE’S USE WILL BE UNINTERRUPTED.
7. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL CYRAL BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. CYRAL’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.
8. MISCELLANEOUS
8.1 Export Control. Customer hereby certifies that Customer will comply with all current US Export Control laws. Customer agrees to defend, indemnify and hold Cyral harmless from any liability for Customer’s violation of U.S. Export Control laws.
8.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Cyral from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Cyral arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.
8.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Cyral may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.
8.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”). Notwithstanding the foregoing: (i) Customer shall be liable for payment obligations for Service rendered; and (ii) if a Force Majeure continues for more than thirty (30) days, either party may to terminate this agreement by written notice to the other party.
8.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.
8.6 Independent Contractor. Cyral is an independent Contractor and both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Cyral.
8.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Purchase Order Form issued under this Agreement.
8.8 Marketing. Customer hereby authorizes Cyral to identify Customer as a Cyral Customer, and to use Customer’s name, mark and logo on Cyral’s website and in Cyral’s marketing materials in connection with the Customer’s use of the Service.
8.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Order Form document, the terms of this Agreement shall control, other than terms expressly modified in any Order Form with respect to such Order Form.