Last Revision Date: October 16, 2024

**Please read these Terms of Service carefully. These Terms of Service (the “Terms”) constitute a legally binding agreement between you (“You” or “Customer”) and Cybenta Ltd. (referred to as “Company,” “We,” “Us,” or “Our”) concerning the use of our Website and Services (as defined below).

BY ACCESSING OR USING OUR WEBSITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OR DO NOT WISH TO BE BOUND BY THEM, YOU SHOULD NOT ACCESS OR USE THE WEBSITE OR SERVICES.

IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY, GOVERNMENTAL ENTITY, OR OTHER ORGANIZATION (AN “ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IN THIS CONTEXT, “YOU” REFERS TO: (1) THE ENTITY, INCLUDING ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES; OR (2) YOU, AS AN INDIVIDUAL, IF YOU ARE NOT REPRESENTING A LEGAL ENTITY.

1. Definitions

• “Documentation” refers to any online documentation for the Services accessible via https://cybenta.ai, as well as any quotes or invoices you have received from us in writing concerning the Services.
• “Effective Date” means the earliest of the following: the date of your subscription, the date you first access or use the Services, the date of the first invoice issued, or the date your credit card payment for the Services is processed.
• “Our Data” includes any information, data, technology, materials, or software contained in the Services that we make available in connection with the Services, including any Documentation, sample code, software libraries, and other related technology and materials.
• “Services” refers to all products, software, and services provided by the Company.
• “Subscription Term” has the meaning defined in Section 14 of these Terms.
• “User” means you or an individual employee, contractor, agent, or IT service provider authorized to access the Services on your behalf, and who uses a unique login and password to access and use the Services (“Access Code”).
• “Your Data” refers to any information, data, or other materials that you transmit to the Services or that are transmitted on your behalf by a third party.
• “Website” means the Company’s website found at www.cybenta.ai.

2. SERVICES

2.1. Subscribing to Services

We operate on a “trial” business model. Prospective subscribers must first complete a free 15-day trial. For specific terms and conditions related to trials, please refer to Section 5 (Evaluation Services; Trial).

Upon expiration of the trial period, you may subscribe to the Services through one of the following methods:

1. By purchasing a Service subscription and paying with a credit/debit card.
2. By signing a Purchase Order (PO) prepared by us, receiving an invoice, and wiring the subscription fee to our bank account.

2.2. Refund Policy

We aim to ensure client satisfaction with our Services. Our free trial allows clients to evaluate the Services before subscribing. Consequently, we do not offer refunds for subscriptions except under the following circumstances:

• If you experience a service error preventing use, and provide a screenshot and details of the issue.
• If you are charged for a subscription renewal despite notifying us within the past 30 days that you do not wish to renew.

2.3. License

Upon subscribing to our Services, we grant you a revocable, limited, non-exclusive, non-transferable, worldwide license to access and use the Services and Website solely for your internal business purposes and during the Subscription Term. This license is restricted to you and your Users. Additionally, we grant you a limited, non-exclusive, non-transferable, royalty-free right to use, display, transmit, and distribute Our Data solely in connection with your permitted use of the Services.

2.4. Certain Restrictions

The rights granted under these Terms are subject to the following restrictions. You shall not:

• (a) License, sell, rent, lease, transfer, assign, distribute, or commercially exploit your account, the Services, or the Website;
• (b) Copy, modify, translate, adapt, merge, create derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Website or Services;
• (c) Engage in any unlawful, misleading, or fraudulent activities or use the Services for illegal or unauthorized purposes;
• (d) Violate or encourage others to violate these Terms and incorporated policies.

Additionally, you agree not to:

• (a) Upload or distribute any viruses, worms, malicious code, or software intended to damage or alter computer systems or mobile devices;
• (b) Collect information or data about other users without their consent (e.g., using harvesting bots, robots, spiders, or scrapers);
• (c) Disable, overburden, impair, or otherwise interfere with servers or networks connected to the Website or Services (e.g., denial of service attacks);
• (d) Attempt to gain unauthorized access to the Website, servers, or networks (e.g., through password mining);
• (e) Interfere with another user’s use and enjoyment of the Website.

2.5. Modifications & Possible Price Changes

Any future releases, updates, or additions to the functionalities of the Website or Services shall be governed by these Terms. We reserve the right to modify, suspend, or discontinue the Website or any part of it (including any Service) at any time, with or without notice. We are not liable for any modification, price change, suspension, or discontinuance of the Website or Services. Prices of the Services may change at any time for any reason, with notice provided via email. New prices will be effective at the start of the new Subscription Term.

2.6. Ownership of Intellectual Property

We and our licensors (if applicable) own all rights, title, and interest in and to the Website, Services, and Our Data, including all related intellectual property rights (such as patents, copyrights, trade secrets, trademarks, and trade names). The Website, Services, and Our Data are licensed to you, not sold or transferred. These Terms do not convey any ownership rights to the Website, Services, or Our Data. Our name, logo, and associated names are our property (or that of our licensors), and no implied or express license to use them is granted. We (and our licensors) reserve all rights not expressly granted in these Terms.

3. CUSTOMER SUPPORT

We provide support for the Services at no additional charge. For assistance, you can reach us via phone or use the support form available at https://cybenta.ai/support.

4. FEES AND PAYMENT TERMS

4.1. Payment for Services

You agree to pay us for the Services provided at the rates specified in your subscription order or according to our updated rates available on the Website.

4.2. Fees Non-Refundable

All fees are non-refundable, except as expressly provided otherwise herein.

4.3. Payment Methods

Depending on how you subscribed to the Services (either directly or through a reseller), payment can be made as invoiced by us or via automatic payment by credit card or through a payment provider/reseller. If you are paying by credit card or through a payment provider/reseller:

• We reserve the right to perform an authorization for a sufficient amount.
• You authorize us to charge you for all Services and any other items listed in your subscription for the Subscription Term and any renewal term.

4.4. Rate Changes

We reserve the right to change the rates, applicable charges, and usage policies, and to introduce new charges. Any such modifications will not apply until the start of your next Subscription Term.

4.5. Due Dates

Except as otherwise agreed in writing, fees are due before the start of each Subscription Term. If you are paying via an invoice, payment is due thirty (30) days after receipt of the invoice and must be made in US Dollars. If you purchased the Services through an authorized reseller, the reseller’s payment terms shall prevail.

4.6. Updating Payment Information

You are responsible for promptly updating any changes to your credit card or other payment information.

4.7. Charge-Backs

If your credit card payment is charged back by your credit card provider, you will remain liable for the full fee in accordance with these Terms.

4.8. Usage Limits and Excess Use

Services are subject to usage limits, including licensed quantities and storage volume specified in your subscription. If you exceed a specified usage limit, we reserve the right to provide the Services in a manner that conforms to the agreed limit. Except as otherwise provided in your subscription, if you exceed the specified usage limit and are unable or unwilling to abide by it, you agree to pay for any excess use in accordance with our then-current pricing.

4.9. Late Payment Fee

We may charge a late fee of one and a half percent (1.5%) per month (or the maximum lawful rate permitted by applicable law) for any amounts not paid on time. Additionally, we reserve the right to suspend or terminate these Terms and your access to the Services if you do not fully pay your invoices as they become due.

5. TRIAL

5.1. Evaluation Services

We may offer certain Services or features to you for evaluation purposes only (“Evaluation Services”). Evaluation Services may be provided as a temporary trial free of charge. If we agree to provide you with Evaluation Services, we will grant you a limited, non-exclusive, revocable, non-transferable, personal, non-sublicensable license to install and use any product or software associated with the Evaluation Services solely for testing and evaluation during the agreed-upon test period. All Evaluation Services are provided in our cloud production environment only. You are prohibited from using the Evaluation Services in a production environment or for production purposes. We are not obligated to correct any bugs, defects, or errors or to provide support or maintenance for the Evaluation Services.

Disclaimer
NOTWITHSTANDING ANY WARRANTIES IN THESE TERMS, THE EVALUATION SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. THE EVALUATION SERVICES ARE NOT INTENDED FOR PRODUCTIVE USE, AND WE WILL NOT BE LIABLE FOR ANY USE OUTSIDE OF THE TESTING ENVIRONMENT. YOUR USE OF THE EVALUATION SERVICES IS AT YOUR OWN RISK.

5.2. Data Handling

Upon expiration of the Evaluation Period, your data will no longer be accessible. However, we will retain your data for 30 days. Any data entered, uploaded, or submitted to our Evaluation Services during the Evaluation Period will be deleted 30 days after the Evaluation Period ends unless you purchase a subscription to the same Services or upgrade before the end of the 30-day period. We will not be liable for any loss of your data that occurs after the end of your Evaluation Period.

6. YOUR RESPONSIBILITIES and DATA

6.1. Your Account

You are responsible for maintaining and updating your account information to ensure its accuracy and completeness. You are accountable for all activities conducted under your Users’ logins and for ensuring your Users’ compliance with these Terms and all applicable laws and regulations. You will be liable for any breach of these Terms by you or any of your Users. You and your Users must always comply with our Acceptable Use Policy. In addition to other remedies available to us, we reserve the right, upon notice to you, to terminate any User’s access to our Services or Website if such User violates any of the restrictions contained in these Terms.

6.2. Your Data

You are solely responsible for your Data, including its accuracy, integrity, and quality, as well as the means by which you acquire and use your Data. You retain all ownership rights in and to your Data. You are responsible for securing your Data when transmitted to and from the Services. Neither you nor your Users may use the Services to:

(a) Send, upload, or otherwise transmit any Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;

(b) Upload or transmit any Data that infringes any trademark, trade secret, copyright, or other proprietary or intellectual property rights of any person;

(c) Upload or transmit any material containing software viruses or other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;

(d) Interfere with or disrupt the Services or networks connected to the Services; or

(e) Violate any applicable law or regulation.

6.3. Right You Grant Us

You grant us a worldwide, non-exclusive, royalty-free, transferable right to process, use, reproduce, transmit, perform, display, and store your Data as necessary to provide the Services to you.

6.4. Data We May Collect

You understand and agree that we may collect certain aggregated, anonymized, and generic data in connection with these Terms. This data may include, among other things, information such as network data, traffic data, location data, logs, communication data, devices, internet connection, browser type, internet service provider, and operating system. This information, collected passively using various technologies, cannot be used to identify any person specifically. We own the statistical usage data derived from the operation of the Service, including data on web applications used, configurations, log data, and performance results for the Service (“Usage Data”). Nothing in these Terms prohibits us from using Usage Data to optimize and improve the Service or operate our business; however, if we provide Usage Data to third parties, it will be anonymized and presented in aggregate form to ensure it does not disclose the identity of you or any Users.

6.5. User Subscriptions

Unless otherwise agreed in writing:

(a) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users;

(b) Additional User subscriptions may be purchased during the subscription term; and

(c) Added User subscriptions shall terminate on the same date as the pre-existing subscriptions.

6.6. User Accounts & Access Codes

You are responsible for creating and managing your User accounts and Access Codes. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer need ongoing access to the Services. You are responsible for keeping your User Access Codes confidential. If you become aware of any unauthorized disclosure or potential disclosure of the User Access Codes, you must notify us immediately. We may close the account and/or block access to the corresponding User account, and we will issue you a new Access Code. You may cancel any or all of your User accounts at any time.

6.7. Technical Means to Access Services

You are responsible for procuring and maintaining the technical environment, including internet and other connections, required to access the Services.

6.8. Compliance

We are not providing legal advice. Customers act on their own volition and are responsible for ensuring their compliance with applicable laws and regulations.

7. YOUR FEEDBACK

From time to time, you may provide us with comments, suggested improvements, and other feedback regarding the use, operation, functionality, and features of the Services (collectively, “Feedback”). You agree that we have the right to use the Feedback at our sole discretion, including incorporating all or some of the Feedback into our Services, without notice to you, payment to you, or your consent.

This right is unlimited, perpetual, worldwide, non-exclusive, fully transferable, fully sublicensable, and irrevocable. It includes the rights to execute, reproduce, distribute, perform, display, modify, create derivative works of, make, have made, use, import, sell, offer to sell, and otherwise transfer the Feedback and to practice or have practiced any process or method involved in any use thereof.

8. MONITORING AND AUDIT

For security reasons, we monitor User IP addresses and will make reasonable efforts to inform you if a User account is accessed from multiple IP addresses or suspect locations. The Services may include user control software that reports the number of authorized Users and allows us and/or our resellers to verify usage of the Services.

You agree that we may monitor or audit your use of the Services to ensure compliance with these Terms. Such monitoring or auditing will not involve access to your Data or IT systems. You agree not to block or otherwise interfere with such monitoring or audit activities. We may employ technical measures to overcome any attempts to block or interfere with our monitoring.

We reserve the right to implement additional mechanisms to verify and protect against unauthorized access. Failure to reasonably cooperate with our monitoring or audit efforts will constitute a material breach of these Terms.

9. CONFIDENTIAL INFORMATION

9.1. What Constitutes Confidential Information

During the term of these Terms, each party will consider as confidential any information provided by the other party that is designated in writing as “proprietary” or “confidential” (“Confidential Information”). Confidential Information also includes information that, under the circumstances, a reasonable person familiar with the disclosing party’s business and industry would consider confidential or proprietary. Your Confidential Information includes Your Data. Our Confidential Information includes the Services and Our Data.

9.2. Confidentiality Obligation

The receiving party shall:

• Hold the Confidential Information in confidence and not disclose it to any person or entity except to its directors, officers, employees, consultants, or advisors (collectively, “Representatives”) who need to know such Confidential Information in the course of their duties and who are bound by confidentiality obligations no less protective than those contained in these Terms.
• Use the Confidential Information solely for the purpose for which it was disclosed and not for its own benefit or the benefit of any other person without the prior written consent of the disclosing party.

9.3. Protecting Confidential Information

Each party is responsible for the actions of its Representatives and will protect the other party’s Confidential Information with the same degree of care as it protects its own confidential information, but in no event using less than reasonable care. The parties agree that the terms and pricing under these Terms are Confidential Information. You agree not to use the Services to conduct comparative analysis, evaluations, or benchmarks without our prior written approval and not to publicly post any analysis or reviews of the Services without our prior written consent. The receiving party will promptly notify the disclosing party upon becoming aware of any breach or threatened breach of confidentiality and will cooperate with any reasonable request from the disclosing party to enforce its rights.

9.4. Exclusions from Confidential Information

Confidential Information does not include information that:

• Was known to the receiving party prior to receipt from the disclosing party without any confidentiality obligation.
• Becomes known to the receiving party from a source other than the disclosing party, provided the source is not under an obligation of confidentiality to the disclosing party.
• Becomes publicly known through no fault of the receiving party.
• Is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.

The receiving party may disclose Confidential Information if required by law, legal process, or government regulation, provided it gives the disclosing party prior written notice to allow the disclosing party to contest such disclosure, and the disclosure is limited to what is required.

9.5. Remedies

Both parties acknowledge that any unauthorized use of Confidential Information may cause irreparable harm for which remedies other than injunctive relief may be inadequate. Therefore, the disclosing party is entitled to seek an injunction (without the need to post a bond or prove actual damages) in addition to other remedies available at law or in equity to prevent such unauthorized use.

10. PRIVACY AND SECURITY

10.1. Privacy Policy

Your privacy is important to us. We are committed to protecting your personal information in accordance with our Privacy Policy, which can be accessed at https://cybenta.ai/privacy-policy. This Privacy Policy is incorporated into these Terms by reference. You agree to read and accept our Privacy Policy before accessing or using our Services or Website. Additionally, you are responsible for ensuring that all your Users also read and accept our Privacy Policy.

10.2. Consent for Personal Information

If you process, upload, or provide personal information about individuals who are not current Users of our Services, you acknowledge that you have obtained the necessary consent from those individuals to do so. This includes ensuring that such processing complies with applicable data protection laws.

10.3. Data Protection

We implement appropriate technical and organizational measures to protect your data and maintain its confidentiality and security. However, you are also responsible for maintaining the security of your own systems and data. You must notify us immediately of any security breaches or vulnerabilities related to your use of our Services.

10.4. Data Access and Use

We will access, use, and disclose personal data only in accordance with our Privacy Policy and as necessary to provide and improve our Services. Any other use or disclosure will be subject to your prior consent.

10.5. Compliance

You agree to comply with all applicable data protection laws and regulations in your use of our Services. This includes ensuring that you have the appropriate legal basis for processing any personal data you provide to us.

11. LIMITED WARRANTY

11.1. Warranty

We warrant that, during the Subscription Term, the Services will conform, in all material respects, with the Documentation provided. This warranty is contingent upon the Services being used in accordance with these Terms and the Documentation.

11.2. Remedies

In the event of a breach of this warranty, we will, at no additional cost to you, provide the necessary remedial services to bring the Services into conformity with the warranty. You must provide us with a reasonable opportunity to remedy any breach and reasonable assistance in addressing any defects. The remedies specified in this section are your sole and exclusive remedies for any breach of this warranty.

11.3. Exclusions

This warranty does not cover:

(a) Modifications to the Services not made or authorized by us; (b) Use of the Services in a manner inconsistent with the Documentation or these Terms; (c) Failure to use the Services according to the instructions provided by us; (d) Any issues arising from third-party products or services, or from your hardware or software.

11.4. Warranty Disclaimer

Except for the limited warranty expressly stated in this section, the Services are provided “as is” and “as available.” We disclaim all other warranties, whether express or implied, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We do not warrant that the Services will be uninterrupted, error-free, or completely secure.

12. DISCLAIMERS

12.1. Service Availability

The Services may be unavailable from time to time due to: (a) Planned system downtime, which will be communicated to you at least three (3) days in advance; and (b) Force Majeure circumstances as described in Section 18 of these Terms, which are beyond our control.

12.2. Documentation and Modifications

We reserve the right to modify, update, or change our Documentation at any time. We may also make modifications to the Services or specific components of the Services (including support levels) from time to time, provided that such modifications do not materially degrade the functionality or features of the Services.

12.3. No Warranties

THE SERVICES AND WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT THEY WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT ANY ERRORS IN THE SERVICES OR WEBSITE WILL BE CORRECTED, OR THAT THE SYSTEM THAT MAKES THE SERVICES AND WEBSITE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE OPERATIONAL, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

THE WARRANTIES STATED IN THESE TERMS ARE YOUR SOLE AND EXCLUSIVE WARRANTIES. WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND WEBSITE ARE ACCURATE, RELIABLE, OR SUFFICIENT FOR YOUR PURPOSES.

13. LIMITATION OF LIABILITY

13.1. Exclusion of Certain Damages

IN NO EVENT WILL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF DATA, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, THE WEBSITE, OR ANY OTHER OBLIGATIONS UNDER THESE TERMS, EVEN IF THEY WERE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

13.2. Limitation on Liability

OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THESE TERMS, WHETHER ARISING BY STATUTE, CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE SERVICE FEES PAID BY YOU TO US PURSUANT TO YOUR SUBSCRIPTION THAT IS THE SUBJECT OF THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.3. Exceptions

THE FOREGOING LIMITATIONS DO NOT APPLY TO DAMAGES ARISING FROM FRAUD OR TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, IN WHICH CASE THE LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

14. TERM, RENEWAL, TERMINATION & SUSPENSION

14.1. Subscription Term & Automatic Renewal

These Terms will commence on the Effective Date as specified above. Upon expiration of the initial subscription term (“Subscription Term”), the subscription will automatically renew for successive periods equal in length to the Subscription Term, unless either party provides written notice of its intent to terminate at least 60 days prior to the end of the then-current Subscription Term.

14.2. Suspension of Subscriptions

We reserve the right to suspend or limit access to your subscription (or to a particular User) if you breach these Terms, including non-payment of fees. We will not be liable for any damages or losses incurred by you as a result of any suspension or termination in accordance with these Terms.

14.3. Termination for Cause

Either party may terminate these Terms (i) immediately in the event of a material breach of these Terms by the other party that is not cured within thirty (30) days after written notice, or (ii) immediately if the other party ceases business or is subject to a voluntary or involuntary bankruptcy, insolvency, or similar proceeding that is not dismissed within ninety (90) days of filing. Termination of these Terms will also terminate all outstanding subscriptions you have with us. Rights and obligations that, by their nature, are intended to survive termination will continue in effect.

14.4. Termination at End of Free Trial

If you use the Services during a free trial period and do not purchase a subscription by the end of that period, these Terms will terminate at the end of the free trial period.

14.5. Termination for Convenience

You may terminate these Terms for convenience at any time by canceling your subscription through our support team or your Account Manager. In such cases, any prepaid and unused subscription fees will remain non-refundable, and we may invoice you for any unbilled subscription fees for the remainder of your current subscription term.

14.6. Effects of Termination

Immediately upon termination or expiration of these Terms, we will cease providing the applicable Services to you, and you will stop using the Services. You will be responsible for paying all fees accrued before the termination date, including any fees for the remainder of the applicable subscription term.

14.7. Return or Destruction of Confidential Information

Upon termination of these Terms, each party will promptly return or destroy all Confidential Information of the other party in its possession. Within thirty (30) days following termination, you may retrieve your Data in accordance with established access procedures. After this period, we will have no obligation to store or make available your Data, will delete it, and will provide a written deletion certificate upon request.

14.8. Survival

All provisions that by their nature should survive termination of these Terms shall survive such termination.

15.  INDEMNIFICATION

15.1. Indemnification by Us

We will indemnify, defend, and hold you harmless from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) that are finally awarded, arising out of or in connection with any claim, suit, action, or proceeding brought by a third party against you alleging that your use of the Services, as permitted under these Terms, infringes any patent, copyright, trademark, or constitutes a misappropriation of a trade secret of a third party. The following are excluded from this indemnification obligation:

(a) Claims arising from your use of the Services in violation of these Terms or applicable law.

(b) Claims arising from your use of the Services after we have notified you to discontinue use due to an infringement claim.

(c) Claims related to third-party products or services, including Third-Party Applications or your Data.

(d) Claims arising from modifications to the Services made by anyone other than us, where such modifications contributed to the claim.

(e) Claims arising from the combination, operation, or use of the Services with software or equipment not provided by us, where the claim could have been avoided but for such combination, operation, or use.

(f) Claims arising from our compliance with your custom requirements or specifications if such compliance led to the infringement.

If the Services are held to infringe, we will, at our expense and in our sole discretion, use commercially reasonable efforts to either:

(a) Procure a license that will protect you against such claim at no additional cost to you;

(b) Replace the Services with non-infringing Services without material loss of functionality; or

(c) If (a) and (b) are not commercially feasible, terminate the Terms or the applicable subscription and refund any prepaid and unused fees paid for the infringing Services.

15.2. Indemnification by You

You will indemnify, defend, and hold us harmless from and against any and all Losses that are finally awarded, resulting from any claim, suit, action, or proceeding brought by a third party against us arising out of or resulting from:

(a) A claim alleging that your Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party;

(b) Your violation of any applicable law or the provisions of Section 8 of these Terms.

15.3. Indemnification Procedure

The indemnified party shall:

(i) Promptly notify the indemnifying party in writing of any claim, suit, or proceeding for which indemnity is claimed, provided that failure to provide such notice will not affect the indemnifying party’s obligations except to the extent it is prejudiced by the delay.

(ii) Allow the indemnifying party to solely control the defense of any claim, suit, or proceeding and all negotiations for settlement, provided that the indemnifying party shall not settle any claim without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.

(iii) Provide reasonable cooperation and assistance in defending such claim, at the indemnifying party’s expense.

16.  THIRD PARTY PROVIDERS AND SOFTWARE

16.1. Third-Party Applications

The Services may include features designed to interoperate with Third-Party Applications. For the purposes of these Terms, “Third-Party Applications” refers to web-based or offline software applications provided by you or a third party that integrate with one or more of the Services. To use these features, you must grant us access to your accounts on such Third-Party Applications, and the provider of the Third-Party Application must grant you access to the Third-Party Applications.

If the provider of a Third-Party Application ceases to make the Third-Party Application available for integration with the corresponding Service features on reasonable terms, we may discontinue those Service features without any obligation to provide a refund, credit, or other compensation.

16.2. Third-Party Software

The Services may include or be performed with software governed by licenses from third parties (“Third-Party Software”), which may include software components subject to open-source licenses (“Open Source”).

All Third-Party Software is licensed to you solely under the terms of the corresponding third-party license agreements provided or referenced in the Services. We make no representation or warranty regarding Third-Party Software and accept no liability with respect to any Third-Party Software.

If the third-party licenses provide for the availability of source code for such Third-Party Software and the source code is not included in the Services’ distribution, please contact us to obtain such source code.

17. GENERAL PROVISIONS

17.1. Entire Agreement

These Terms, together with the Privacy Policy and the terms in your subscription, constitute the entire agreement between the parties and supersede all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by you shall be of no force or effect, even if the purchase order is accepted by us. In the event of any conflict between the terms of these Terms and any terms in the subscription, if any, the subscription terms shall control.

17.2. Contract Changes

We reserve the right to switch customers from the Unlimited Plan to the Custom Storage Plan at any time during their contract. We will make reasonable efforts to notify you of such changes, and your continued use of our services following the changes will indicate your acceptance. If you do not agree to the changes, please contact our Customer Support.

17.3. Assignment

These Terms shall be binding upon and for the benefit of each party and their permitted successors and assigns. Either party may assign these Terms as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in these Terms, neither party may otherwise assign its rights or delegate its duties under these Terms, either in whole or in part, without the prior written consent of the other party. Any attempted assignment or delegation without such consent will be void. We may use independent contractors or subcontractors to assist in delivering the Services; provided, however, that we remain liable for the actions or omissions of the independent contractors or subcontractors and for the payment of their compensation.

17.4. Marketing

You agree that we may use your trade names, trademarks, or service marks in connection with the performance of the Services, and in our promotional materials, notices, and advertisements.

17.5. Governing Law

These Terms shall be governed by and construed in accordance with the laws of England and Wales, without regard to its conflict of law provisions. With respect to all disputes arising out of or related to these Terms, the parties consent to exclusive jurisdiction and venue in the courts located in London, England.

17.6. Relationship of the Parties

Each party is an independent contractor, and nothing in these Terms shall be construed as creating a partnership or as establishing the relationship of employer and employee, or principal and agent, for any purpose whatsoever. Neither party shall make any contracts, warranties, or representations, or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

17.7. Force Majeure

Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, internet service provider failure, Third-Party Applications failure, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

17.8. Notices

We may give notice to our general Service customer base by means of a general notice on the Service portal, and notices specific to you by electronic mail to your email address on record in your User Account or by written communication sent by first-class mail or pre-paid post to your address on record in your User Account.

If you have a dispute with us, wish to provide a notice under these Terms, or become subject to insolvency or other similar legal proceedings, you must promptly send written notice to us at Cybenta Ltd., 167-169 Great Portland Street, 5th Floor, London, W1W 5PF, United Kingdom; Attn: Legal.

You consent to receiving electronic communications (including emails at the address in your account) and notifications from us in connection with your use of the Services. You are responsible for providing us with your most current email address, and an email will be deemed received once it has been sent to the email address we have on file.

Except as otherwise specified in these Terms, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email.

17.9. No Third Party Beneficiaries

Nothing contained in these Terms is intended or shall be construed to confer upon any person any rights, benefits, or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.

17.10. Waiver and Severability

Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either party to exercise any of its rights under these Terms will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of these Terms will not affect the validity or enforceability of any of the other provisions hereof, and these Terms will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

17.11. Export

You will not export, re-export, use, or divert the Services to or on behalf of (a) any country that is subject to UK, EU, or UN economic sanctions, including but not limited to Burma, Cuba, Iran, Libya, Sudan, Syria, and North Korea; (b) the government of any country sanctioned by any of the above, wherever located; or (c) persons or entities identified as “Specially Designated Nationals” or sanctioned pursuant to applicable regulations. You shall not distribute or supply the Services to any person if you have reason to believe that such person intends to export, re-export, or otherwise transfer the Services to, or use the Services in or for the benefit of, any such sanctioned countries, governments, persons, or entities. You shall not use the Services in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons, missiles, or unmanned aerial vehicles. You shall not export, re-export, or transfer the Services to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. Without limiting the foregoing, you shall not commit any act which would, directly or indirectly, violate, or which may cause us to violate, any UK, EU, or local law, regulation, treaty, or agreement relating to the export or re-export of the Services. At your expense, you shall obtain any government consents, authorizations, or licenses required for you to exercise your rights and discharge your obligations under these Terms. You acknowledge that your data, once placed on the Services, may constitute an export of your data by you to one or more foreign jurisdictions. You shall not cause any such export of data in violation of the laws of the United Kingdom and/or such other foreign jurisdictions.

17.12. United States Government Restricted Rights

This provision applies only if you are the United States Government or a state or local government entity located in the United States (collectively, the “Government”), or if you are accessing or otherwise using the Services on behalf of the Government. Any technical data or Services which are licensed to the Government, its agencies, and/or instrumentalities as a result of these Terms are commercial technical data or commercial computer software developed exclusively at private expense as defined in FAR 2.101 or DFARS 252.227-7014 as applicable. For technical data, use, duplication, or disclosure by the Government is subject to restrictions as set forth in DFARS 202.227-7015 and these Terms. For Services and any software contained therein, in accordance with FAR 12-212 or DFARS 227-7202, as applicable, use, duplication, or disclosure by the Government is set forth in these Terms. No other rights are granted. Use of the Services and/or any technical data provided with such Services shall be deemed acceptance of this clause by you.