CloudPassage Terms of Service

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT” OR “TERMS OF SERVICE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CLOUDPASSAGE, INC. (“WE”, “US”, “OUR”, OR “CLOUDPASSAGE”).

BY CLICKING TO COMPLETE REGISTRATION OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE), YOU OR THE ENTITY YOU REPRESENT (“YOU”, “YOUR”, OR “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE AND YOU WILL HAVE NO RIGHT TO USE THE SERVICES. BY CLICKING ANY BUTTON, GRAPHIC OR HYPERLINK TO SUBMIT YOUR REGISTRATION INFORMATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND YOUR ORGANIZATION TO THIS AGREEMENT.

1. Scope of Agreement.

1. “Services” means one or more of our computer security and compliance analysis, monitoring and management services, as further described on one or more Order Forms, including the service provided through portal.cloudpassage.com and any related software (including, without limitation, the Halo software agent and Halo API connectors) and materials provided by CloudPassage for your use as part of the Service. Except for the rights expressly granted under this Agreement, CloudPassage retains all right, title, and interest in and to the Services and derivative works.
2. This Agreement will govern all orders (in written form or online) submitted by Customer for access to and use of the Services for a specified period (“Subscription Period”) in exchange for payment of fees specified by physical or electronic order forms (“Order Forms”).  Upon mutual execution, each Order Form will become part of this Agreement.
3. Unless earlier terminated in accordance with Section 9, this Agreement shall commence upon your first use of Services and shall continue until the later of the end of (i) any evaluation period permitted by CloudPassage (the “Evaluation Period”), at which time your use of the Services may be terminated by CloudPassage at any time without prior notice or (ii) the Subscription Period. The Evaluation Period and the Subscription Period are collectively referred to as the “Term”.

2. Use of Services and Software License; Restrictions; Modifications.   During the Term and subject to the terms of this Agreement, we grant you a personal, nonexclusive, non-transferable license to access the Services specified in one or more Order Forms in accordance with the documentation supplied by us, solely for your internal business purposes.

1. You shall pay for each unit of usage that the Services is used or available for use (a “Unit”) during a Subscription Period, as defined in the Order Form.  Usage will be measured by an automated usage metering system during each “Usage Period”, as defined in the Order Form, in the Subscription Period.  The first Usage Period for each Order Form will begin as of the effective date of that Order Form.
2. You will pre-purchase the number of Units specified on an Order Form for each of the Usage Periods covered by that Order Form (the “Prepaid Units”).  Fees associated with Prepaid Units cannot be prorated.  Prepaid Units not used during a Usage Period are not carried over to subsequent Usage Periods.  In the event that your Units in any Usage Period exceed the Prepaid Units for that Usage Period (“On-Demand Units”), or if you continue to use the Services after the Subscription Period, you shall pay for such use at the pay-as-you-go (PAYG) unit rates posted on the CloudPassage website. For the purposes of this Section, a “Unit” is either a Server-Hour, Container-Hour or Account-Month, as defined below:

1. A “Server-Hour” is an hour in which a server (a virtual or hardware machine) is connected to the Halo Security Automation Platform (the “Grid”);
2. A “Container-Hour” is an hour in which a container host is connected to the Halo Security Automation Platform (the “Grid”);
3. “Account-Months” are the number of distinct cloud service provider accounts that have been inspected by Halo Cloud Services Secure during a monthly Usage Period.

3. You acknowledge and agree that the Services incorporate functionality to monitor your usage of the Services for billing purposes (the “Metering Tools”).  You shall not temporarily deactivate or impair use of the Services on any computer system, or temporarily deactivate or impair use of any computer system using the Services, or take any other actions which may circumvent or interfere with the normal operation of the Metering Tools or impact information obtained by the Metering Tools.
4. From time to time, we may (but are not obligated to) provide upgrades, patches, enhancements, or fixes for the Services to our customers generally without additional charge, which will become part of the Services and subject to this Agreement.  We may cease supporting old versions or releases, or certain features of the Services at any time in our sole discretion, in which case we will provide at least 30 days’ advance notice.  In addition, we may temporarily restrict your access to parts or all of the Services without liability for maintenance purposes, or in the event of your material breach of this Agreement.  If such restrictions are implemented for purposes of maintenance or upgrade of the Services then we will provide reasonable advance notice, and if such restrictions are implemented for emergency purposes then advance notice is not required.
5. You grant us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you or your users relating to the design or operation of the Services.
6. You agree not to reverse assemble, reverse compile or reverse engineer any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying Proprietary Information (as defined below), or use the Services for performing comparisons or other ‘benchmarking’ activities for any purpose other than your confidential internal evaluation of the Services, either alone or in connection with any software, except to the extent such restrictions are prohibited by applicable law.

3. Fees and Invoicing.

1. You shall pay us the applicable fees (“Fees”) set forth on each Order Form in accordance with the terms and conditions set forth on such Order Form. Each Order Form submitted by you is non-cancellable and all Fees paid to us are nonrefundable. We will invoice Fees in accordance with the terms of each Order Form.  Invoices for On-Demand Units will be issued monthly in arrears. Late payments are subject to compound monthly penalties of 2% of outstanding balance. You will reimburse us for reasonable expenses incurred in collecting any overdue payments.
2. You will be responsible for payment of all sales, value-added, or similar taxes on the sale or delivery of the Services, excluding our income or franchise taxes.  Amounts due under any invoice shall not be reduced by any taxes withheld by you.

4. Proprietary Information.

1. You acknowledge that, in the course of using the Services, you may obtain, learn or develop information relating to the Services and/or to CloudPassage, including, but not limited to, technical, business, product, marketing and financial information, plans and data (including performance data), as well as authentication or access keys, tokens or passwords or other registration information provided to you hereunder (collectively, “Proprietary Information”). During and after the Term, you shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes generally known to the public without breach of this Agreement by you or your agents. You will not remove or export the Services or any Proprietary Information or any portion or direct product thereof from the United States in violation of any export control or similar laws.  This paragraph supplements, but does not replace, any separate written confidentiality agreement entered into between you and CloudPassage.
2. All electronic data or information submitted by you to the Services or generated by your use of the Services (“Customer Information”) is owned by you and will be considered your Proprietary Information.  We will not use, modify or disclose to anyone any Customer Information unless compelled by legal order. We will employ industry-standard administrative, technical, organizational and physical measures to protect the security of and to protect against unauthorized access to or use or disclosure of Customer Information.
3. We retain the right to use electronic data regarding the use and performance of the Services by our customers generally, including you, such as the number of workloads and accounts protected, the number of scans completed, the number and type of issues reported back to customers, system response times and similar metrics, but only in aggregated, anonymized form which in no way links to Customer, allows Customer to be identified, or utilizes Customer-provided data.

5. Data Protection.

1. In this Section 5, the following expressions shall have the following meanings: "Controller"shall mean the entity which determines the purposes and means of the processing of Personal Information;"Personal Information" shall mean any information relating to an identified or identifiable natural person; and "Processor" shall mean an entity which processes Personal Information on behalf of a Controller.
2. If and to the extent that the System Data contains any Personal Information, then CloudPassage will process such Personal Information only in connection with the performance of the Services and as a Processor acting on behalf of Customer (as Controller). CloudPassage will process any such Personal Information only in accordance with Customer's lawful instructions and as set out in this Agreement.
3. CloudPassage will put in place appropriate technical and organizational measures to protect the System Data (including any Personal Information contained in the System Data) against unauthorized or unlawful processing and against accidental loss or destruction.
4. You acknowledge and agree that CloudPassage will process the System Data (including any Personal Information contained in the System Data) at its or its authorized subcontractors' data processing facilities in the U.S.

6. WARRANTY DISCLAIMER.
   THE PARTIES ACKNOWLEDGE THAT. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND CLOUDPASSAGE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN ADDITION, CLOUDPASSAGE MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7. LIMITATION OF REMEDIES AND DAMAGES.
   NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR AN ORDER FORM:

1. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE WITH RESPECT TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR (I) LOSS OR INTERRUPTION OF USE OF THE SERVICES; (II) LOSS OR INACCURACY OR CORRUPTION OF DATA; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR (IV) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. EXCEPT FOR (I) PAYMENTS DUE IN THE NORMAL COURSE, AND (II) LIABILITY ARISING OUT OF OUR INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION OBLIGATION IN SECTION 8, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE GREATER OF (X) THE AGGREGATE AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE LIABILITY, OR (Y) ONE HUNDRED THOUSAND DOLLARS ($100,000).

8. Indemnification.
   During and only during the Subscription Period, we will indemnify, defend and hold you, your affiliates, officers, directors, and employees harmless from any and all costs, damages, liabilities and expenses (including but not limited to, reasonable attorneys’ fees) to the extent arising out of or in connection with any claim by an unaffiliated third party that the Services infringe or misappropriate any patent, copyright, trademark or other intellectual property right of such third party (each, an “Infringement Claim”), provided that you: (a) notify us in writing within thirty (30) calendar days of receipt of the Infringement Claim; (b) grant us sole control of the defense and settlement of the Infringement Claim; and (c) provide us (at our expense) with all assistance, information and authority reasonably required for the defense and settlement of the Infringement Claim. In the event of any such Infringement Claim, we may, at our option: (i) obtain a license to permit you to continue using the Services; or (ii) modify or replace the relevant portion(s) of the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; provided that if (i) and (ii) are not available on economically feasible terms, then we will have the right to terminate this Agreement or the applicable Order Form and refund to you any prepaid and unused Fees. Notwithstanding the foregoing, we will have no liability for any Infringement Claim to the extent that it results from: (1) modifications to the Services not made by us or our agents; (2) the combination, operation or use of the Services with equipment, devices, data or software not provided or approved by us, where the Services would not be infringing; (3) your failure to use updated or modified versions of the Services provided by us; (4) our compliance with any specifications or requirements provided by you; or (5) your use of the Services other than in accordance with this Agreement. You shall indemnify and hold us harmless from any Infringement Claim relating to any of the exclusions set forth in the previous sentence. This Section 8 sets forth our sole and exclusive obligations, and your sole and exclusive remedies, with respect to any claim of infringement or misappropriation of intellectual property rights.
9. Termination.

Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice. In the event of early termination of an Order Form by you for any reason other than our uncured material breach, you shall not be entitled to a refund of any Fees paid and you shall pay us as liquidated damages and not as a penalty any Fees not prepaid and owed by you at the time of such termination for the reminder of the then-current Subscription Term.  Upon termination, (a) the rights and licenses granted to you hereunder shall terminate and you shall immediately return, delete or destroy any software you have obtained in connection with the Services (including related documentation), (b) we shall make available for download all System Data and output from the Services that is in our possession, and (c) each party shall immediately make available for download, return, delete or destroy all Proprietary Information of the other party. The rights and obligations of the parties under Sections 2 through 9 will survive the termination or expiration of this Agreement.

10. General.

1. Neither party may assign its rights or obligations arising under this Agreement without the other party’s written consent, and any such attempted assignment or transfer shall be void and without effect; provided that either party may assign all of its rights and obligations under this Agreement without such consent to a successor-in-interest in connection with a sale of all or substantially all of such party’s assets or business.
2. Each party shall comply with all applicable laws and government regulations in connection with its exercise of rights or performance of obligations under this Agreement.
3. We may utilize subcontractors in providing the Services hereunder; provided that we remain responsible for such subcontractors’ performance hereunder.
4. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
5. You acknowledge and agree that due to the unique nature of our Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow you or third parties to unfairly compete with us causing us irreparable harm, and therefore, that upon any such breach or threat thereof, we will be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies we may have at law (without the requirement of posting a bond).
6. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
7. Neither party will be liable to the other party by reason of any failure or delay in performance because of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, earthquakes, or widespread internet connectivity failures.
8. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
9. This Agreement, any Order Form and any separate Master Services Agreement between us constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto and related to the subject matter hereof are expressly canceled. Except as otherwise set forth herein, any modifications of this Agreement must be in writing and signed by both parties hereto.

11. Freemium Services.

1. CloudPassage may, in its sole discretion, offer versions of the Service on a cost-free basis (“Freemium Services”) with limitations and restrictions. A single organization is entitled to one Freemium subscription only and may not combine paid Services with Freemium Services.
2. Customer use of Services in excess of the limitations of Freemium Services will result in fees for On-Demand Units at the pay-as-you-go (PAYG) rates listed on the CloudPassage website. These fees will be invoiced monthly in arrears to the primary contact for the Freemium account.
3. CloudPassage retains the right to, at its sole discretion, terminate any Freemium Services for any reason and without notification or liability.
4. CloudPassage will provide support for Freemium Services on a best-effort basis as resources are available on a first-come, first-serve basis, but provides no guarantee that support will be provided for Freemium Services.
5. YOUR USE OF FREEMIUM SERVICES IS ENTIRELY AT YOUR OWN RISK. FREEMIUM SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND, AND CLOUDPASSAGE WILL HAVE NO INDEMNIFICATION OR DEFENSE OBLIGATIONS OR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES OR USE OF THE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE IN NO EVENT WILL CLOUDPASSAGE LIABILITY WITH RESPECT TO THE THE SERVICES OR USE OF THE SERVICES EXCEED $100. THIS SECTION SUPERSEDES SECTIONS 7 AND 8 OF THIS AGREEMENT FOR CUSTOMERS USING FREEMIUM SERVICES. ALL OTHER TERMS OF THESE TERMS APPLY AND GOVERN YOUR AND YOUR USERS’ USE OF FREEMIUM SERVICES.
   

Last Updated:  October 8, 2020