Effective May 23, 2016
CF-HSM.IO TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
These Terms of Service constitute an agreement (this “Agreement”) by and between SafeNet Inc., a Delaware corporation whose principal place of business is at 4690 Millennium Drive, Belcamp, MD 21017 (“SafeNet”) and the individual, corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and SafeNet’s provision of SafeNet’s Service (as defined below in Section 2) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON AGREEING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
- “API” means application programming interfaces.
- “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all order forms hereunder), the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “Customer Application” means Customer’s software application(s) provided that utilize and/or access the Service and may be distributed and utilized by End Users.
- “Customer Data” means data in electronic form input or collected through the Service by or from Customer including, but not limited to, account information and cryptographic keys associated with a Customer.
- “Documentation” means the user manuals and associated materials provided to Customer by SafeNet describing the function and use of the Service which may be modified from time to time in writing, including modifications posted on the website of SafeNet’s parent company, Gemalto (“the Gemalto Website”).
- “End User” means an individual third party end user granted access to the Customer Application by Customer.
- “Excluded Territory” means Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, the Crimea region of Ukraine, or any other country to which the United States has embargoed goods including any country listed in Country Group E:1 as defined in15 C.F.R. Part 740, Supplement No. 1.
- “Fee” means the fee due for the Service, as specified on the Order.
- “SafeNet Property” means all trade secrets, know-how, copyrights, trademarks, patents and patent applications owned by SafeNet or any of its subsidiaries or affiliates.
- “Order” means SafeNet’s ordering documentation or website purchase flow specifying Customer’s scope of use for the Service.
- “Sandbox Service” the free version of the Service provided to Customer which shall be subject to usage restrictions identified in any Order and/or this Agreement.
- “Service” means SafeNet’s cf-hsm.io service and associated network APIs.
- “Term” is defined in Section 6.1 below.
- “Territory” means worldwide excluding the Excluded Territory.
- “User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- Use of the Service
- Access and Use. Subject to the terms of this Agreement, SafeNet grants Customer a limited, non-transferrable, non-exclusive, license to access and use the Service from or in the Territory during the Term for test and development purposes only. SafeNet reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time. Customer’s use of the Service is subject to the terms of plan selected by the Customer (e.g., sandbox or paid subscription) as well as any Order.
- Access to Sandbox Service. Notwithstanding the foregoing, SafeNet may restrict Customer’s access to the Service if Customer’s Order is for Sandbox Service. SafeNet may restrict access to the Service by limiting the number of API requests allowed per hour, as well as other mechanisms. SafeNet reserves the right to include additional limitations of use on Sandbox Services without prior notice. Customer shall utilize Sandbox Services for internal, non-production, testing purposes only and shall not utilize the Sandbox Services in any production, or non-test environment.
- Limitations of Use. Customer agrees not to reverse engineer the Service, the underlying components, or other SafeNet technology. Customer will not use or access the Service to: (1) build a competitive product or service, (2) make or have made a product using similar ideas, features, functions or graphics of the Service, (3) make derivative works based upon the Service or SafeNet Property, unless otherwise provided for by this Agreement, (4) provide the Service to any national or resident of the Excluded Territory, (5) support or facilitate any high‐risk applications, including the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, weapons systems, or any other application where the failure or malfunction of the Service can reasonably be expected to result in death, personal injury, severe property damage harm, or (5) copy any features, functions or graphics of the Service. Customer will not frame or mirror the Service. Use, resale, or exploitation of the Service and/or SafeNet Property except as expressly permitted in this Agreement is prohibited.
- Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable. In addition, SafeNet may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Gemalto Website; Customer will be bound by any such rules. Customer will comply with all applicable laws regarding Customer data, use of the Service, and SafeNet Property, including laws involving privacy and any applicable export controls. SafeNet reserves the right to terminate this Agreement for cause in the event that Customer materially breaches the provisions of this Section.
- Customer agrees not to use the Service in any way that disrupts or causes harm to SafeNet’s computers, systems or infrastructure, other parties, or is in violation of any applicable laws, including U.S. state or federal laws. SafeNet reserves the right to suspend or terminate immediately without liability, Customer’s use of the Service, in cases where Customer violates its obligations as stated in this section 4.
- Account Information Submitted to SafeNet. Customer agrees to provide to SafeNet, in writing, billing and contact information as SafeNet may reasonably require, including Customer’s legal name, street address, email address, and name and telephone number of an authorized billing contact. Customer agrees to update this information promptly by means of email SafeNet and in any case within fifteen (15) days, if there is any change.
- System Data. SafeNet may collect system data regarding use and functioning of the System to deliver and improve the Service. Such collected system data will be the sole property of SafeNet. This system data contains no personally identifiable information or link to Customer’s end users.
- SafeNet Ownership. SafeNet and its suppliers retain all rights in the Service and SafeNet intellectual property. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The SafeNet and Gemalto name, the SafeNet Gemalto logo, and the product names associated with the Service are trademarks of SafeNet or Gemalto, and they may not be used without SafeNet’s prior written consent or as otherwise expressly indicated here. SafeNet shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its end users relating to the operation of the Service.
- Customer Data after Termination. If Customer terminates this Agreement, SafeNet may remove or delete Customer Data, and makes no guaranty that any customer data will be available beyond 30 days after termination. With regard to Sandbox Services, SafeNet will provide access to Customer Data subject to the access restrictions associated with Sandbox Service accounts. Customer may contact SafeNet if it wishes to bulk export Customer Data after termination to request bulk export. Removal or exportation of Customer Data after termination is the sole responsibility of Customer.
- Term. This Agreement is in effect for as long as Customer has access to the Service (the “Term”), unless sooner terminated as permitted in this Agreement.
- Term of Order. Each Order shall remain in effect for the term stated in the Order or, in the case of a trial unless otherwise stated in a trial Order, for so long as SafeNet determines, unless sooner terminated in accordance with the terms of this Agreement or the Order.
- Termination by Customer. Customer may terminate this Agreement at any time with notice to SafeNet.
- Termination by SafeNet. SafeNet may terminate access to Sandbox Services for any reason without notice to Customer. SafeNet, in its sole discretion, may suspend or terminate one or more of Customer’s usernames and passwords, accounts, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach, if curable, has not been cured within ten (10) business days of notice of such breach or immediately in the case of a non-curable breach. SafeNet may immediately terminate this Agreement if Customer utilizes the Service in violation of any law or if requested by law enforcement.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Service. Any Customer Data will be retained in accordance with Section 3 of this Agreement. SafeNet reserves the right to immediate remove any Customer Data if required by law.
- Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). Receiving Party agrees to promptly inform the Disclosing Party if it receives a subpoena or other legal process requiring it to release such information, and to cooperate with the Disclosing Party’s legal counsel whilst Disclosing Party opposes disclosure if Disclosing Party chooses to do so. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
- Warranties and Disclaimers
- Customer acknowledges and agrees that the Service is supplied “as-is” by SafeNet without any other express or tacit warranty.
- Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
- Customer represents and warrants: (a) it has not falsely identified itself or provided any false information to gain access to the Service, (b) it is not located in, under control of, or a national or resident of the Excluded Territory or identified on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List, (c) will not utilize the Service in the Excluded Territory or cause the Service to be utilized in the Excluded Territory, (d) Customer’s billing information is correct, (e) Customer, as the data provider, has provided, if required, all appropriate notices to the data subjects and has obtained all appropriate consents to transfer the data to SafeNet and allow its processing according to the terms and conditions of this Agreement, and (f) not to use, or authorize any third party to use, any open source software in connection with the Service in any manner that requires, pursuant to the license applicable to such open source software, that any SafeNet intellectual property or Service be: (A) disclosed or distributed in source code form, (B) made available free of charge to recipients, or (C) modifiable without restriction by recipients.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS TERMS OF THIS AGREEMENT ARE IN LIEU OF ALL OTHER TERMS, CONDITIONS AND WARRANTIES. THERE ARE NO OTHER TERMS, CONDITIONS WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF SATISFACTORY QUALITY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN THIS SECTION, THE SERVICE AND SAFENET PROPERTY ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. SAFENET DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. SAFENET IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
- Customer agrees to indemnify, defend and hold SafeNet (and its officers, directors, employees and agents) harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim arising out of: (1) any claim that any Customer Application using the Service, and/or the combination of any Customer Application with one or more other applications, content, or processes infringes the intellectual property rights of or has otherwise harmed a third party, (2) any claim that Customer or its End Users access or utilize the Service in the Excluded Territory or that Customer is identified on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List (3) Customer’s or its End Users’ use of the Service in violation of this Agreement; (4) gross negligence, reckless or intentional acts or omissions, or fraud by Customer, Customer representatives, and/or End Users; (5) any representations and/or warranties agreed to by Customer under this Agreement, and (6) expenses or costs from a third party subpoena or compulsory legal order or process that seeks Customer-related information; provided that SafeNet: (A) promptly gives written notice of the claim to Customer; (B) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases SafeNet of all liability); and (C) provides to Customer, at Customer’s cost, all reasonable assistance.
- Limitations of Liability
- SAFENET AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR CUSTOMER DATA), WHETHER OR NOT FORESEEABLE AND EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. SAFENET AND ITS AFFILIATES AND LICENSORS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DIRECT DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICE, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER DATA. SAFENET AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY FOR ANY PERMITTED DIRECT DAMAGES UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAYS SAFENET UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM. SAFENET AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR THE MAINTENANCE OR DESTRUCTION OF ANY CUSTOMER DATA FOLLOWING TERMINATION OF THIS AGREEMENT.
- THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET OUT HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND SAFENET. CUSTOMER ACKNOWLEDGES AND AGREES THAT SAFENET WOULD NOT BE ABLE TO PROVIDE THE SERVICE ON A COST EFFECTIVE BASIS WITHOUT SUCH LIMITATIONS.
- U.S. Government Restricted Rights
- If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Service (including any software forming a part thereof) were developed entirely at private expense, (b) the Service (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to SafeNet, (c) the Service (including any software forming a part thereof) are not in the public domain, and (d) the software forming a part of the Service is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212.
- Export Restrictions
- Customer agrees not to store or process any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access to or use of the Service in any U.S. embargoed country, including the Excluded Territory, or in violation of any U.S. export laws or regulations. In particular, but without limitation, the Service, or data utilized therein, may not be utilized, accessed, exported, or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (including the Excluded Territory), or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
- General Provisions
SafeNet may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to:
Name: Legal Department
Fax: +1 (410) 931-7524
Address: 4690 Millennium Drive
Belcamp, MD 21017
Such notices from Customer to SafeNet will be deemed received 72 hours after they are sent.
- Governing Law
This Agreement shall be governed in all respects by the laws of the United States of America and the State of New York without regard to conflicts of law principles. All disputes arising under this Agreement shall be brought exclusively in the state and federal courts located in the State of New York and Customer hereby submits to the personal jurisdiction of the above courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded from this Agreement.
- Modifications to the Agreement
This Agreement may be modified by us from time to time. Any modifications SafeNet makes will be effective immediately upon posting and the effective date of the latest version will appear on this page. It is Customer’s responsibility to regularly check the site to determine if there have been changes to this Agreement and to review the changes. Customer hereby waives any right Customer may have to receive specific notice of such changes or modifications. Customer’s continued use of the Service following the posting of changes or modifications will confirm Customer’s acceptance of such changes or modifications. If Customer does not agree to the amended terms, Customer must stop using the Service.
- Federal Government End Use Provisions
SafeNet provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data–Commercial Items) and DFAR 227.7202-03 (Rights In Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with SafeNet to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Customer may not assign, delegate or transfer this Agreement, in whole or in part, or any of its rights or duties hereunder, including by merger (regardless of whether Customer is the surviving entity) or acquisition, without the prior written consent of SafeNet. Any attempted assignment in violation of this Agreement is void. Notwithstanding anything the contrary herein, SafeNet may assign or transfer this Agreement in whole or in part to any third party without the prior written consent of Customer. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors or permitted assigns.
- Entire Agreement
This Agreement, including and appendices, exhibits, attachments and any document referred to in this Agreement or attached hereto, constitutes the entire and exclusive statement of the agreement between the parties with respect to its subject matter and supersedes all prior communications, understandings, and agreements between the parties concerning the subject matter hereof, whether written or oral.
No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure of either party to require the performance by the other party of any provisions of this Agreement, shall not be construed as a waiver of such provisions in the future, nor will it affect the ability of a party to enforce each and every provision thereafter.
If any court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted so as to best accomplish its intent within the limits of the applicable law or court decisions.
- Force Majeure
Neither party shall be in breach of this Agreement for any failure or delay in the performance of its obligations, hereunder (except for the payment of money) as a result of a force majeure, such as fire, explosion, acts of God, sabotage, labor conditions, war, insurrection, terrorism, government regulation or act or any other cause beyond the reasonable control of such party, provided that the affected party gives the other party prompt written notice of the delay and uses its best efforts to cure it.
- No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
The sections titled “Fees,” “SafeNet Ownership,” “Warranties and Disclaimers,” “Limitations of Liability,” “Confidentiality,” “Survival,” and “General Provisions” shall survive any termination or expiration of this Agreement.