BreachRx Cyber RegScout™ Terms of Service
By clicking the “I accept” button, taking an action to indicate acceptance, or by using any of the Cyber RegScout Services, with or without registration, you agree to these Terms with Cyber RegScout. In the event you are agreeing to these Terms on behalf of a Company (“Company”) or other legal entity, you certify that you are an authorized representative of such entity. If you do not have such legal authority, or you do not agree with these Terms, do not accept, access or use the Services in any manner.
If you are using the Cyber RegScout Services during a proof of concept, free trial, no cost offering, or other product evaluation (“Evaluation”), your use of the Services during the Evaluation period is governed by these Terms. Notwithstanding any other provisions in these Terms, access to the Services during an Evaluation period is on an “as-is” basis without any representations, warranties and/or conditions of any kind. Any data or content uploaded to the Services by you may be permanently lost upon expiry of the Evaluation period. If you continue to use the Services after the conclusion of the Evaluation period, you understand that these Terms will also govern your ongoing use of those Services.
If you are a direct competitor to BreachRx you may not access the Services, or monitor the functionality, performance, or availability of the Services, or any other competitive purposes.
PLEASE READ THE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT IN SECTION 14(G) AND A CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 14(H) THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS OR UNLESS YOU OPT OUT PURSUANT TO THE PROVIDED INSTRUCTIONS, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
1. Services, Restrictions and User Obligations
Cyber RegScout is a regulatory intelligence software as a service product. The material contained on Cyber RegScout is for informational purposes only, is general in nature, and is not intended to and should not be relied upon or construed as a legal opinion or legal advice regarding any specific issue or factual circumstance. The material is provided “as is” and is not guaranteed to be correct, complete, or up-to-date.
Conditioned on your compliance with these Terms, Cyber RegScout grants you and your Authorized Users (defined below) a nonexclusive, nontransferable, nonsublicensable, revocable right to use and access the Services in accordance with documentation, all applicable local, state, national and international laws, rules and regulations and only for your internal business purposes. To use our Service, you must be at least 18 years of age. You represent and warrant that you meet the applicable age requirements and are competent to agree to these Terms.
Except to the extent a restriction is prohibited by law, you agree not to do, and not to assist, permit or enable any third party to do, any of the following:
- disassemble, reverse engineer, decode or decompile any part of the Services;
- use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Services;
- discover the source code, object code or underlying structure, ideas, interfaces, data structures, and elements, know-how or algorithms relevant to the Services
- provide, copy, rent, lease, sell, loan, transfer, assign, sublicense, resell, distribute, modify, alter or create derivative works of any part of the Services or any of our Intellectual Property (defined below);
- use the Services in any manner that impacts (a) the stability of our servers, (b) the operation or performance of the Services or any User’s use of the Services, or (c) the behavior of other applications using the Services;
- use the Services in any manner or for any purpose that (a) violates or promotes the violation of any applicable law, regulation, legal requirement, contractual obligation or right of any person including, but not limited to, intellectual property rights, rights of privacy, or rights of personality, (b) is fraudulent, false, deceptive or defamatory, (c) promotes hatred, violence or harm against any individual or group, or (d) otherwise may be harmful or objectionable (in our sole discretion) to us, our providers, our suppliers, our users, or any other third party;
- use or display the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Services, or otherwise to our detriment or disadvantage;
- attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Services;
- transmit viruses, worms or other software agents through the Services;
- impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Services for any invasive or fraudulent purpose;
- share passwords or authentication credentials for the Services, or otherwise circumvent the measures we may use to prevent or restrict access to the Services or enforce limitations on use of the Services; or
- identify or refer to us or the Services in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you (or a third party) and us, without our prior express written consent.
To access and use the Cyber RegScout Services, you will be required to register an account with BreachRx by completing a registration form and designating a user ID and password. When registering an account with BreachRx, you agree to: (A) provide true, accurate, current and complete information about yourself as prompted by the Cyber RegScout Service’s registration form (such information being the “Registration Data”) and (B) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Cyber RegScout Services (or any portion thereof) for you and your Company.
You may not authorize any third party to access or use the Cyber RegScout Services on your behalf. You are responsible for maintaining the confidentiality of the user ID and password and are fully responsible for all activities that occur under your account. You agree to immediately notify BreachRx of any unauthorized use of your account or any other breach of security. BreachRx cannot and will not be liable for any loss or damage arising from any unauthorized use of your account. By providing us with your email address, you agree to receive all required notices electronically, to that email address.
By inputting or supplying your Registration Data, including an email address, address, mobile telephone number and/or telephone number, or by otherwise creating an account, you electronically consent to receive marketing or advertising messages communications including email or mobile push notices from Cyber RegScout and third parties, such as changes to features of the Services and special offers. If you do not want to receive such messages, you may opt out or change your preferences by clicking the unsubscribe link within each marketing or advertising email message. Opting out of marketing communications will not prevent you from receiving Services-related notices.
3. Term and Termination
These Terms will commence when you first use our Services and will continue until terminated by either party in accordance with the provisions set out in these Terms. Either party may terminate these Terms for convenience, at any time, upon written notice to the other party, subject to the terms and conditions in Section 6(C) below. BreachRx may provide User with notice of termination by email to User contact reflected in your Registration Data.
If in BreachRx’s sole judgment you fail, or if BreachRx suspects that you have failed, to comply with any provision of these Terms, BreachRx may terminate these Terms at any time without notice. For clarity, any such termination will terminate any and all of your existing Subscription Agreements.
The following provisions will survive any termination of these Terms: Section 3 (“Term and Termination”), Section 4 (“Intellectual Property Rights”) (except as expressly provided therein), Section 5 (“Confidentiality”), Section 6 (“Fees”), Section 7(A) (“Privacy”), Section 8 (“Representations & Warranties”), Section 9 (“Liability”), Section 10 (“Changes to Agreement”), Section 11 (“Inactivity or Cancellation or Termination of Subscription”) and Section 14 (“General Provisions”).
4. Intellectual Property Rights
A. User Data and Content
These Terms do not grant either party any rights, implied or otherwise, to the other’s content or intellectual property, unless expressly stated otherwise in these Terms. As between the parties, User owns all intellectual property rights in User Content (defined below), and Cyber RegScout owns all intellectual property rights in and to the Services, including software, products, support, documentation, aggregated and statistical information and related works, including but not limited to any modifications and derivative works of the foregoing.
“User Content” means any and all information, content and data that a User submits to, uploads to, or uses with, the Services. Cyber RegScout does not claim ownership of your User Content. You are solely responsible for your User Content. You assume all risks associated with use of your User Content. You hereby represent and warrant that your User Content does not violate any User obligations as specified in Section 1(C) or elsewhere in these Terms nor does your User Content violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We take no responsibility and assume no liability for any of your User Content.
B. License to Cyber RegScout
In the event User provides BreachRx with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Services (“Feedback”), BreachRx shall own such Feedback without compensation to User, attribution of any kind, or any other obligation to User.
You acknowledge that, other than original government works and other public domain materials, this Service contains information, graphics and other material (collectively, “Content”) that are protected by copyrights, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. BreachRx owns a copyright in the selection, coordination, arrangement and enhancement of such Content. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. You may not upload, post, reproduce or distribute Content protected by copyright, or other proprietary right, without obtaining permission of BreachRx.
E. Trade and Service Marks.
All rights in the product names, company names, trade names, logos, product packaging and designs of BreachRx, whether or not appearing in large print or with the trademark symbol, belong exclusively to BreachRx, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied on this Service confers on you any license or right under any patent or trademark of BreachRx or any third party.
F. Notice of Copyright Infringement
If you believe that your work has been copied and is accessible on this Service in a way that constitutes copyright infringement, please provide BreachRx’s Copyright Agent with the following information:
- identification of the copyrighted work claimed to have been infringed;
- identification of the allegedly infringing material on the Service that is requested to be removed;
- your name, address and daytime telephone number, and an e-mail address if available, so that BreachRx may contact you if necessary;
- a statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law;
- a statement that the information in the notification is accurate, and under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed; and
- an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
BreachRx’s Copyright Agent may be reached as follows:
BreachRx will remove any posted submission which infringes the copyright of any person under the laws of the United States upon receipt of such a statement (or, more specifically, any statement in conformance with 17 U.S.C. § 512(c)(3)). United States law provides significant penalties for submitting such a statement falsely.
The parties acknowledge and agree that each party (the “Receiving Party”) may have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is (A) proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries, and its affiliates, including any business plans, strategy, pricing, or financial information; (B) the terms of any Subscription Agreement; and/or (C) any other information that is designated as confidential by the Disclosing Party. Confidential Information of BreachRx shall also include the Services, and Confidential Information of User shall also include the User Content. Confidential Information does not include any information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) rightfully disclosed to the Receiving Party by a third party; (iii) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party without restriction; or (iv) independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party.
At all times the Receiving Party shall: (D) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (E) not use the Disclosing Party’s Confidential Information other than as permitted under this Agreement, and (F) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement or to the extent necessary to comply with applicable law.
A. Subscription Fees
We may make portions of the Services available on an automatically renewing subscription basis (each, a “Subscription” for the Services) for recurring fees (“Subscription Fees”). We may make available, or remove from availability, any portion of the Services on a subscription basis in our sole discretion. We may add or amend Subscription Fees at our sole discretion. When we add or amend Subscription Fees, we will update our online Subscription Terms. Any change to our online Subscription Terms shall become effective in the Subscription Term (as defined below) following notice of such change to you as provided in this Agreement; provided, however, that if we have offered a specific duration and Subscription Fees for your use of the Services, we agree that such Subscription Fees will remain in force for that duration. Your Subscription will automatically renew at the end of the term identified in your Subscription Agreement for subsequent terms equal in length to the initial term (the initial such term and each renewal term, a “Subscription Term”) unless and until you cancel your Subscription or it is suspended, discontinued or terminated in accordance with these Terms.
When you purchase a Subscription to the Services, you acknowledge and agree that we and/or our third-party payment processors are authorized to charge you for: (i) the Subscription Fees identified in the applicable Subscription Agreement; (ii) sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Cyber RegScout; and (iii) any other charges you may incur in connection with your purchase and use of the Services. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in the Subscription Fees in accordance with these Terms, and/or changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts.
Except as otherwise set forth in an applicable Subscription Agreement, all Subscription Fees are immediately due and payable in advance at the start of each Subscription Term. You agree to pay all Subscription Fees with your credit card, debit card, or other payment method. You must provide us with a current, valid, accepted payment method. When you initiate a payment transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and charge your payment method in United States dollars. We currently use a third-party service payment processor, and by using our Services you agree to be bound by their Services Agreement. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection). If your payment is not successfully settled for any reason within fourteen (14) days after payment has been initiated for your transaction, your Subscription and access to the Services may be canceled or suspended in our sole discretion and BreachRx may pursue payment directly from your Company.
C. Cancellation Procedure
You may cancel your Subscription(s) at any time, however you remain liable for the Subscription Fees until the Subscription terminates at the end of the Subscription term. In order to cancel your Subscription, you must notify us before the start of the next Subscription Term using the appropriate functionalities of the Services. You will continue to have access to the Services through the end of the Subscription Term.
D. No Refunds
SUBSCRIPTION FEES ARE NON-REFUNDABLE EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT BE REFUNDED FOR ANY UNUSED TIME IN YOUR SUBSCRIPTION TERM OR ANY PRE-PAYMENTS MADE FOR SERVICES IN THE EVENT THAT: (I) YOU CANCEL OR TERMINATE YOUR SUBSCRIPTION OR (II) WE SUSPEND OR TERMINATE YOUR SUBSCRIPTION OR THIS AGREEMENT FOR YOUR BREACH OF THESE TERMS.
7. Privacy and Security
B. Security of User Content
Without limiting the following, BreachRx shall maintain commercially reasonable physical, technical and administrative safeguards for protection of the security, confidentiality and integrity of User Content. User acknowledges that the structure of the systems used in connection with the Services makes it technically possible for a limited number of BreachRx personnel to access User Content. BreachRx personnel will only access User Content subject to the confidentiality restrictions in Section 5 (“Confidentiality”) hereof, and with the consent of User or to the extent reasonably required (i) to perform the Services on behalf of User; (ii) to investigate or correct a system error or otherwise improve the Services; (iii) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (iv) to comply with any applicable law, regulation, subpoena, discovery request or court order; (v) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; or (vi) to verify compliance with the provisions hereof; or (vii) to enforce/protect the rights and properties of BreachRx.
8. Representations & Warranties
Each party represents and warrants that these Terms constitutes a valid and binding obligation and is enforceable against it in accordance with these Terms.
BreachRx shall not be liable for any default or delay in the performance of its obligations under this Agreement to the extent its performance is delayed or prevented due to causes beyond its reasonable control, such as acts of God, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, the actions or omissions of third parties, electrical or communication system failures or governmental action.
THE SITE AND ANY INFORMATION WE SUPPLY YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOUR USE OF THE SITE AND INFORMATION SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTEND LEGALLY POSSIBLE, BREACHRX AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“BREACHRX PARTIES”): (A) MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (B) EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (C) DO NOT WARRANT THAT THE SITE OR INFORMATION ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM YOUR USE OF THE SITE AND/OR INFORMATION.
THE BREACHRX PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SITE OR INFORMATION HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR THEREOF, AND ASSUME NO RESPONSIBILITY FOR ANY: (D) ERRORS, MISTAKES, OR INACCURACIES RELATED TO THE SITE OR INFORMATION; (E) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (F) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (G) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (H) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (I) ANY LOSS OF YOUR DATA OR OTHER CONTENT FROM THE SITE; AND/OR (J) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BREACHRX TO ANY THIRD PARTY.
THE CONTENT PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES IS DESIGNED TO PROVIDE PRACTICAL AND USEFUL INFORMATION ON THE SUBJECT MATTER COVERED. WHILE SUCH CONTENT MAY CONCERN ISSUES RELATED TO PROFESSIONAL SERVICES, SUCH CONTENT IS NOT PROFESSIONAL SERVICES ADVICE. YOU SHOULD NOT ACT OR REFRAIN FROM ACTING ON THE BASIS OF ANY CONTENT INCLUDED ON THIS SITE OR IN CONNECTION WITH THE SERVICES WITHOUT SEEKING THE ADVICE OF A COMPETENT PROFESSIONAL IN THE APPLICABLE SUBJECT MATTER. WE EXPRESSLY DISCLAIM ALL LIABILITY IN RESPECT OF ACTIONS TAKEN OR NOT TAKEN BASED ON ANY CONTENT OF OR IN CONNECTION WITH THE SERVICES. BREACHRX’S PROVISION OF THE SERVICES, THE MATERIALS MADE AVAILABLE ON THE SERVICES AND ANY INFORMATION PROVIDED BY OUR REFERENCE ATTORNEYS (AND ANY OTHER BREACHRX REPRESENTATIVES) ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY. USER ACKNOWLEDGES AND AGREES THAT THE MATERIALS DO NOT, AND ARE NOT INTENDED TO, CONSTITUTE LEGAL ADVICE AND DO NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, BREACHRX WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE USE OF THE SITE OR INFORMATION WE SUPPLY YOU, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE BREACHRX PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (A) USE OF THE SITE OR INFORMATION WE SUPPLY YOU; (B) ERRORS, MISTAKES, OR INACCURACIES OF THE SITE OR INFORMATION; (C) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (D) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (E) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS; (F) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; (G) ANY LOSS OF YOUR DATA OR USER CONTENT FROM THE SITE; (H) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE BREACHRX PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (I) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS, OUR PRIVACY NOTICE, OR ANY OTHER COMMUNICATION WE MAKE OR NOTICE WE PROVIDE.
OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE OR INFORMATION WE SUPPLY YOU (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED USD$100, OR THE TOTAL AMOUNT PAID BY YOU TO BREACHRX FOR THE BREACHRX SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
Some states and jurisdictions do not allow limitation of liability or caps on damages in certain instances. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law and our liability shall be limited or excluded as permitted under mandatory applicable law.
10. Changes to Agreement
BreachRx may amend these Terms from time to time by posting the revised terms of this Agreement on BreachRx’s website and/or by providing written notice of such amendment to User (which notice may be provided via email to User contact listed in the Registration Data). Any revised terms of this Agreement will take effect from the date of posting or notice to User, unless otherwise specified in such posting or notice. User should check BreachRx’s website frequently for any such revisions. User’s continued use of the Services shall be deemed to constitute its acceptance of any such revised terms.
11. Inactivity or Cancellation or Termination of Subscription
Upon a prolonged period of inactivity, or any cancellation or termination of User’s Subscription to the Services, BreachRx will have no obligation to maintain or provide access to User Content. If a User’s account is inactive for one hundred and twenty (120) days, BreachRx reserves the right to delete or destroy all copies of User Content without providing notice, unless legally prohibited. Furthermore, BreachRx reserves the right to delete or destroy all copies of User Content in the normal course of operation any time after the cancellation or termination of User’s subscription to the Services. User Content cannot be recovered once they are deleted or destroyed.
12. Third Party Websites
You will defend, indemnify, and hold us, our Affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (A) your access to and use of the Site (including the BreachRx RegScout Services); (B) violation of these Terms by you or; (C) infringement of any intellectual property or other right of any person or entity by you; (D) the nature and substance of all documents, data, or other content uploaded by you to the Site (including the BreachRx Cyber RegScout Services); or (E) any products or services purchased or obtained by you in connection with the Site (including the BreachRx Cyber RegScout Services).
We retain the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
14. General Provisions
A. Relationship of the Parties
The relationship of the parties under these Terms is one of independent contractors and does not create an agency, partnership, franchise, joint venture, fiduciary or employment relationship between the parties.
B. Force Majeure
Neither party shall be in default if its failure to perform or delay in performing any obligation under these Terms (other than payment obligations) is caused any condition beyond the party’s reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood, or other acts of God, labor conditions, power failures, equipment failures, and Internet disturbances.
Neither party may assign a Subscription Agreement or any Subscription, in whole or in part, without the other party’s prior written consent, not to be unreasonably withheld; provided, however, that BreachRx may assign a Subscription Agreement without User’s consent to any entity that acquires all or substantially all of the business or assets of BreachRx related to the Services, whether by merger, reorganization, acquisition, sale, operation of law, change in control or otherwise. Any assignment made in conflict with this provision shall be void. These Terms are binding upon and will inure to the benefits of each of the parties and their respective successors and assigns. Nothing in these Terms is intended or shall be construed to give any person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect to these Terms.
No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right unless expressly acknowledged and agreed to by both parties in writing. A waiver of rights under these Terms will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
E. Execution; Severability
Except as stated in Section 14(G), if any provision of these Terms, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, such provision shall be replaced with another provision consistent with the purpose and intent of these Terms, and the remaining provisions of these Terms shall remain in effect. In the case of any conflict or inconsistency between the provisions of your Subscription Agreement and the provisions of these Terms, these Terms shall govern.
F. Governing Law and Jurisdiction
You agree that: (i) the Services shall be deemed solely based in Delaware; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over Cyber RegScout, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This Section 14(G) (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising, marketing, or other communications from us; (iii) any transactions through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with us, directly or indirectly, as a user or consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms.
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim through binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS (the “Rules”), except as provided herein. JAMS may be contacted at www.jamsadr.com, where the Rules are available. In the event of any conflict between the Rules and this Arbitration Agreement, the Arbitration Agreement shall control. The arbitration will be conducted in Delaware, unless you and we agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (v) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (vi) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (vii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, or any provision of these Terms, is unconscionable or illusory or any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
H. Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND BREACHRX AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BREACHRX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
I. DMCA Notices
We respect content owner rights, and it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via our Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide all of the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on our Service;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to our DMCA Agent using the following contact information:
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that the preceding requirements do not constitute legal advice. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to our Service and/or terminate our Service Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
J. Publicity Rights
You grant us the right to identify you or your Company as a User in our promotional materials, including your Company logo on our website. In order to opt out of this right to identify you or your Company, send a request to firstname.lastname@example.org. Opting out of this right, may require an increase in Subscription Fees in order to continue using the Cyber RegScout Services.
K. Entire Agreement
These Terms, together with any amendments and any additional agreements you may enter into with us in connection with our Service, will constitute the entire agreement between you and us concerning our Service. None of our employees or representatives are authorized to make any modification or addition to these Terms. Any statements or comments made between you and any of our employees or representatives are expressly excluded from these Terms and will not apply to you or us or your use of our Services.
If you have any questions about these Terms, please contact us at email@example.com.
Updated Jun 2, 2023