Terms of Service

Thank You For Choosing Authentic8!

Legalese can be tedious and heavy. Authentic8 wants to deliver a valuable service, but there are some basic ground rules, which are described below. Please read the complete Authentic8 Terms of Service below, which is the controlling agreement, but basically:

• The Authentic8 Service is accessible directly over the internet via Authentic8’s client software application or the browser. There is no requirement for Authentic8 to visit your facilities or access your corporate network.
• When you register to use Authentic8, we store the information you give us, as well as log information.  These data elements can be anonymized and/or encrypted.
• Your data is yours. If you leave our service, we give you mechanisms to export and delete it from our systems.
• We make diligent efforts to protect your data.  You can also configure product in a manner which minimizes your surface area of exposure and limits what data you share in our system. You should configure and use the product accordingly.
• We can't always anticipate problems with other websites or web services, and so we can't be responsible for your relationship with those third parties.
• Please don't attempt to decompile or otherwise reverse engineer our software.
• Likewise, we take a rather dim view of someone trying to hack or spoof Authentic8 so please don't attack our service.
• Please don't do anything illegal or infringe the rights of others using Authentic8. We reserve the right cooperate with the appropriate law enforcement or civil authorities.
• We believe in rapid iteration, and so we're always updating Authentic8, including the App software you may install on your computer. We do this to give you access to new features, as well as to constantly improve security. Customer communication is an important part of our business model, so we’ll attempt to keep you posted about changes we think you need to know about.

TERMS OF SERVICE 

This Authentic8 Terms of Service, along with any other terms and/or policies expressly incorporated herein by reference (which form an integral part hereof), as amended from time to time (collectively, the “Agreement” or the “Terms”) constitute a legally binding agreement as of the Effective Date (as defined below) governing your access to and use of the Authentic8 Service. This Agreement is between Authentic8, Inc. (“Authentic8”, “us”, “we” or “our”) and you, either individually, or on behalf of your employer or any other entity which you represent (“Customer”, “you” or “your”). If you accept this Agreement or use the Authentic8 Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement.

 

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON AN “I ACCEPT” OR OTHER SIMILARLY LABELED BUTTON OR CHECKBOX WHICH REASONABLY INDICATES ACCEPTANCE OF THESE TERMS, ACCESSING OR USING THE AUTHENTIC8 SERVICE, OR SUBMITTING AN ORDER FORM, (THE EARLIEST OF SUCH TO OCCUR, THE “EFFECTIVE DATE”), YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE AUTHENTIC8 SERVICE.

 

AUTHENTIC8’S ACCEPTANCE OF AN ORDER FORM (AS DEFINED IN SECTION 6.1 BELOW) IS EXPRESSLY LIMITED TO AND CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS CONTAINED IN THIS AGREEMENT UNLESS OTHERWISE SPECIFICALLY AGREED TO IN WRITING BY AUTHENTIC8. AUTHENTIC8 OBJECTS TO ANY TERMS IN YOUR ACCEPTANCE OR CONFIRMATION OF ANY ORDER FORM (INCLUDING ANY TERMS CONTAINED OR REFERENCED IN ANY SUBSEQUENT PURCHASE ORDER) THAT ARE ADDITIONAL TO OR DIFFERENT FROM THE TERMS OF THIS AGREEMENT. ANY SUCH ADDITIONAL OR DIFFERENT TERMS, TOGETHER WITH ANY ACKNOWLEDGMENTS OR OTHER BUSINESS PROCESSES, FORMS OR WRITING THAT CUSTOMER MAY USE OR REQUIRE IN CONNECTION WITH THE PROVISION OF THE AUTHENTIC8 SERVICE FROM AUTHENTIC8, WHETHER RECEIVED PRIOR TO OR AFTER THE DATE OF AN ORDER FORM, WILL BE DISREGARDED BY THE PARTIES UNLESS SUCH TERMS ARE SPECIFICALLY AGREED TO IN A WRITING SIGNED BY AUTHENTIC8, REGARDLESS OF ANY FAILURE OF AUTHENTIC8 TO OBJECT TO SUCH MATTERS.

 

1. AUTHENTIC8 SERVICE.
   1. The Authentic8 platform is an internet security service, inclusive of any and all functionalities, application programming interfaces and tools offered as part of the Authentic8 platform (but excluding Third Party Add-Ons), accessed via Authentic8’s client software application  (the “Authentic8 App”) or directly via a browser (collectively, the “Authentic8 Service”).  For the avoidance of doubt, some Authentic8 Service offerings, capabilities, features or other functionalities may only be available or optimized while accessing the Authentic8 Service via the Authentic8 App or directly via a browser.
   2. Authentic8 shall have the right to modify and/or add new service features or product offerings to the Authentic8 Service in Authentic8's sole discretion. Authentic8 reserves the right to provide these new offerings as independently priced and delivered offerings, or to integrate them into the Authentic8 Service at no incremental cost.
   3. If Customer elects to access the Authentic8 Service via the Authentic8 App, Customer must download the Authentic8 App as directed by Authentic8 and install it on each device that will use the Authentic8 Service. Alternatively, Customer may access the Authentic8 Service directly via a browser. When installed on your computer, the Authentic8 App communicates with our servers. We may require the updating of the Authentic8 App when we release a new version, or when we make new features available. This update may occur automatically or upon prior notice to you and may occur all at once or over multiple sessions. Customer agrees to stay current with the latest version of the Authentic8 App. Customer shall only (i) the install the Authentic8 App on, and/or (ii) access the Authentic8 Services from; compatible devices that are supported by Authentic8 (compatibility information for Authentic8 App  may be found at HERE; for the authentic8 web client, HERE). Customer and its Authorized Users may not modify, alter, decompile or reverse engineer any part of the Authentic8 Service or the Authentic8 App.
   4. The Authentic8 Service is intended solely for persons who are 18 or older. Any access to or use of the Authentic8 Service by anyone under 18 is expressly prohibited. By accessing or using the Authentic8 Service, Customer represents and warrants that its Authorized Users are 18 or older.
   5. To the extent any Order Form for an Authentic8 Service identifies a storage capacity (e.g., 1 GB),  throughput capacity (e.g., 2 GB of Data Transfer / month), or any other metric reasonably intended as a limit on Customer’s use (each, an “Authentic8 Service Limit”), Authentic8 reserves the right to limit or suspend Customer’s access to the applicable Authentic8 Service in the event Customer reaches or exceeds that Authentic8 Service Limit.
   6. During the Subscription Term, Authentic8 will provide technical support for the Authentic8 Service according to the (i) Standard Support Terms (http://www.authentic8.com/standard-support-terms/), which are incorporated herein or, to the extent Premium Support is included on the Order Form and paid for by Customer, the (ii) Premium Support Terms (http://www.authentic8.com/premium-support-terms/) , which are incorporated herein. 
   7. During the Subscription Term, Authentic8 will make the Authentic8 Service available in accordance with Service Level Agreement (http://www.authentic8.com/service-level-agreement/), which is incorporated herein, and will use reasonable efforts to maintain the Authentic8 Service in a manner that minimizes errors and service interruptions.
   8. Authentic8 shall protect and process Customer Personal Data in accordance with the Data Processing Addendum (http://www.authentic8.com/data-processing-addendum/) and Authentic8’s Privacy Policy (http://www.authentic8.com/privacy-policy/), both of which are incorporated herein.

 

2. AUTHORIZED USERS.
   1. “Authorized User” means a single individual who is authorized by Customer to use the Authentic8 Service and for whom Customer has provisioned a unique username for the Authentic8 Service, whether or not the Authorized User actually accesses the Authentic8 Service.  Customer may from time to time replace an Authorized User who has terminated or changed their job status or function, or otherwise no longer requires use of the Authentic8 Service. Customer is responsible for the activities of all of its Authorized Users, including their use of Customer Personal Data, even if those Authorized Users are not from Customer’s organization or domain.
   2. Customer agrees to pay subscription fees for the number of Authorized Users (“Base Number”) identified on the applicable Order Form for each Authentic8 Service ordered. If Customer increases the number of Authorized Users through the execution of an additional Order Form or by granting access to a number of users in excess of the Base Number, the Base Number shall be increased accordingly, and Customer agrees it will pay, within thirty (30) business days of an invoice from Authentic8, for the additional Authorized Users at per user pricing identical to the underlying subscription pricing, prorated for the remaining portion of the  then-current Subscription Term.  For the avoidance of doubt, Authentic8 may review Customer's use of such subscriptions at any time through the Service.  Any increase in the Base Number of Authorized Users will co-terminate on the same date as the then-current Subscription Term.
   3. Customer may not decrease the Base Number during the then-current Subscription Term. Customer may only decrease the Base Number of Authorized Users for a subsequent Subscription Term by providing notice prior to the commencement of the same.

 

3. USE OF THE AUTHENTIC8 SERVICE. 
   1. To use the Authentic8 Service, Customer must use the admin account provisioned by Authentic8 in order to set up and configure their organization profile. Authentic8 reserves the right to suspend or terminate Customer’s user account if any information provided during the procurement process or thereafter proves to be inaccurate, not current or incomplete. Customer is responsible for safeguarding its login credentials to access the Authentic8 Service and shall be solely liable and responsible for any losses, damages, liabilities and expenses incurred by Authentic8 or a third party due to any usage of the Customer’s account(s), whether authorized or not, by Customer or any third party. Customer shall immediately notify Authentic8 of any unauthorized use of Customer’s account. Customer shall comply with the Use and Configuration Guide (http://www.authentic8.com/use-and-configuration-guide/), which is incorporated herein. Notwithstanding anything to the contrary in these Terms, Customer acknowledges and agrees that (i) it understands the settings, privileges and controls included in the Authentic8 Service Admin Console, (ii) such settings can affect the accessibility, security, and privacy of Customer Data, and (iii) shall be solely liable and responsible for the results thereof.
   2. Customer, and/or its Authorized Users may use the Authentic8 Service to manage and store certain login and other account information (“Account Access Information”) to access websites, web-based applications and other internet resources, and the content therein (all third party websites, web-based applications, and other internet resources, together with the content therein, “Third Party Web Resources”) that Authorized Users will access through the Authentic8 Service. Authorized Users may only use the Authentic8 Service to access accounts for which they are authorized to access and use by both Customer and the party offering such Third Party Web Resources. By providing Account Access Information, the account owner (whether Customer or its Authorized Users) permits Authentic8 to use (and, if elected by Customer or its Authorized Users, store) the Account Access Information on behalf of the account owner to perform logins and other access-related activities when so directed by Customer or its Authorized Users. The account owner can remove any Account Access Information stored with the Authentic8 Service at any time. In no event shall Authentic8 provide Customer Account Access Information associated with Authorized Users personal websites to Customer. Customer and its Authorized Users are responsible for taking appropriate steps to maintain the security and confidentiality of Account Access Information in their possession or control.
   3. Customer acknowledges and agrees (i) that its relationship with each Third Party Web Resource is governed by the agreement between Customer and the third party offering the Third Party Web Resources and (ii) that when Authentic8 accesses Third Party Web Resources, Authentic8 is acting as Customer’s agent and not as the agent of, or on behalf of, any third party.
   4. Authentic8 is not responsible or liable for: (1) the compatibility, availability, accuracy, or security of any Third Party Web Resources accessible through the Authentic8 Service, (2) the content, products, or services on or available from Third Party Web Resources; or (3) the deletion, non-delivery or failure to store or submit Account Access Information, or a loss of other information or settings on Third Party Web Resources accessible through the Authentic8 Service.

 

4. PROPRIETARY RIGHTS; SUBSCRIPTION GRANT; RESTRICTIONS. 
   1. Authentic8 owns all right, title and interest in and to the Authentic8 Service and the Authentic8 App, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “Authentic8 IP”) including all worldwide intellectual property rights therein.  This Agreement does not convey any proprietary interest in or to any Authentic8 IP or rights of entitlement to the use thereof except as expressly set forth herein.   Customer acknowledges and agrees that portions of the Authentic8 IP, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Authentic8 and its licensors. Accordingly, Customer agrees not to disassemble, decompile or reverse engineer the Authentic8 IP, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
   2. Subject to the terms and conditions of this Agreement, and Customer’s compliance therewith, Authentic8 grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable right to access and use the Authentic8 Service, during the applicable Subscription Term, solely for Customer’s internal purposes.
   3. Customer agrees that it, and its Authorized Users, shall use the Authentic8 Service in accordance with the Acceptable Use Policy (http://www.authentic8.com/acceptable-use-policy/), which is incorporated herein, and shall not: (1) use the Authentic8 Service other than as authorized in this Agreement; (2) resell, sublicense, or otherwise make the Authentic8 Service available to any third party; (3) use the Authentic8 Service to support any activity that is illegal or that violates the proprietary or contractual rights of others; (4) interfere with or disrupt the integrity or performance of the Authentic8 Service or Third Party Web Resources; (5) deactivate, impair, or circumvent any security or authentication measures of the Authentic8 Service or any Third Party Web Resources; (6) access the Authentic8 Service for purposes of monitoring its performance or functionality; or (7) authorize any third parties to do the above.
   4. Authentic8 will be free to use any suggestions, ideas, feedback, or recommendations provided by Customer regarding the Authentic8 Service or the Authentic8 App (“Feedback”). In no event will Customer restrict or attempt to restrict Authentic8’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the individual providing such Feedback.

 

5. CUSTOMER DATA; INFORMATION SECURITY AND DATA PROTECTION; PRIVACY POLICY. 
   1. Customer retains all right, title, interest and control, in and to the Customer Data (defined below), in the form submitted to the Authentic8 Service. The Customer license grant to Authentic8 in the next sentence is a limited license grant, granted to Authentic8 solely for Authentic8: (i) to maintain and provide the Authentic8 Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when Authentic8 has a good faith belief, or has received a complaint alleging, that such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) to use as expressly permitted in writing by you. Subject to the foregoing limitations, Customer grants Authentic8 a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data, and solely to the extent that reformatting Customer Data for display in the Service constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works.
   2. Customer represents and warrants that: (i) it has obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted to Authentic8 herein, for any data, file attachments, text, images, reports, Customer Personal Data (defined in the Data Processing Addendum), or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Authentic8 Service by Customer (or an Authorized User) and is processed by Authentic8 on Customer’s behalf (collectively, “Customer Data”) (ii) the Customer Data is in compliance with, and subject to, the Acceptable Use Policy which is incorporated herein; and (iii) the Customer Data submitted by Customer, Customer’s use of such Customer Data, and Authentic8’s use of such Customer Data, as set forth in these Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection, publicity and/or contractual rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation; (c) violate any of Customer’s or third party’s policies and terms governing the Customer Data. Other than Authentic8’s security and data protection obligations expressly set forth in Section 1.8, Authentic8 assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.

 

6. ORDERS; SUBSCRIPTION TERM; SUBSCRIPTION FEES; PAYMENT; RENEWAL.
   1. Authentic8’s order form may be completed and placed in various ways, including without limitation directly or indirectly via third party resellers, via an online form or in-product screens or any other mutually agreed upon offline form delivered by Customer and accepted by Authentic8, including via mail, email or any other electronic or physical delivery mechanism (the “Order Form”). Such Order Form will list, at the least, the Service ordered and the associated fees. The “Subscription Term” shall include the initial subscription term identified on the Order Form (or if not expressed therein, an initial one (1) year term) and any renewal term, whether by express mutual agreement or Customer’s continued use of the Authentic8 Service.  Unless stated otherwise in the Order Form, the initial Subscription Term shall commence upon Authentic8’s acceptance of the Order Form.
   2. The Authentic8 Service shall be deemed accepted upon delivery (i.e., provisioning). Customer will pay the fees or charges for access to the Authentic8 Service (excluding Evaluation Services during an Evaluation Term) for the initial Subscription Term specified in the Order Form (“Fees”).  All Fees are quoted in United States dollars. Subscription Fees will be invoiced in advance of the applicable Subscription Term and are due within 30 days from the date of invoice. Incremental service fees incurred by increasing the Base Number of Authorized Users or ordering additional functionality or add-ons may be invoiced at any time after such increase or order, prorated for the remaining portion (i.e., after the effective date of the increase) of the then-current Subscription Term. Except in the case of Customer terminations pursuant to Section 7.2 or Authentic8 terminations pursuant to Section 7.3, all payment obligations are non-cancelable and once paid are nonrefundable.
   3. Late payments will accrue interest at 1.0% per month or the maximum rate permitted by law, whichever is less, calculated from the date such amount was due until the date that payment is received by Authentic8.  Customer claims regarding fees invoiced must be made in writing within 60 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Subscription Fees are exclusive of all taxes or other charges imposed by taxing authorities, and Customer is responsible for payment of all such taxes and charges, excluding any taxes based on Authentic8’s income.  If Authentic8 has the legal obligation to pay or collect the taxes for which Customer is responsible, that amount will be invoiced to and paid by Customer, unless Customer provides Authentic8 with a valid tax exemption certificate authorized by the applicable taxing authority.
   4. The Subscription Term will renew for subsequent terms of one (1) year upon the mutual agreement of the parties (or for a longer term as expressly agreed to by the Parties) or Customer’s continued use of the Authentic8 Service, and shall be subject to this Agreement, unless expressly memorialized otherwise in a writing signed by Authentic8 and Customer.

 

7. SUSPENSION; TERMINATION.
   1. Without limiting other available remedies, Authentic8 reserves the right to disable Customer’s account and suspend access to the Authentic8 Service if Customer has undisputed amounts more than 30 days past due.  Authentic8 also reserves the right to suspend access to the Authentic8 Service in accordance with Authentic8’s Copyright Policy (http://www.authentic8.com/copyright/) or if Authentic8 reasonably suspects that: (1) someone other than an Authorized User is using (or attempting to use) Customer’s account; (2) Customer or any of its Authorized Users use of the Authentic8 Service disrupts, harms, or poses a security risk to the Authentic8 Service or to any website or web-based application; or (3) Customer is using the Authentic8 Service in breach of this Agreement. In no event shall Authentic8 suspend access to the Authentic8 Service without first notifying Customer of the nature of the problem.
   2. A party may terminate this Agreement with written notice (i) if the other party breaches a material term of this Agreement and fails to correct the breach within 30 days following written notice specifying the breach.  If Customer rightly terminates this Agreement for cause, Authentic8 will refund the unused portion of the Subscription Fees that Customer had paid for the Authentic8 Service and Services for the remainder of the Subscription Term. 
   3. Authentic8 shall have the right to terminate this agreement for its convenience for any reason by giving notice of termination effective upon receipt thereof by Customer. In such event, Authentic8 will refund the unused portion of the Subscription Fees that Customer had paid for the Authentic8 Service and Services for the remainder of the Subscription Term. In the event Authentic8’s termination for default is wrongfully made it shall be treated as a termination for convenience.
   4. Upon any expiration or termination of this Agreement, Customer’s right to access and use the Authentic8 Service will automatically terminate, and Customer may not continue to access or use the Authentic8 Service.  Upon termination, Customer shall promptly uninstall and destroy all copies of Authentic8 IP in Customer’s possession or control. Authentic8 will have no liability for any costs, losses, damages, or liabilities arising out of or related to Authentic8’s exercise of its termination rights under this Agreement.  Any payment obligations as of the expiration or termination (or that relate to activity during the Subscription Term) will remain in effect. Authentic8 will provide Customer an opportunity to download and delete their data from its system. If Customer does not delete their account information, it will be automatically deleted by Authentic8 in accordance with its data retention policies.

 

8. DISCLAIMER. 
   1. The Authentic8 Service and the Authentic8 App are provided “AS IS” and on an “AS AVAILABLE” basis.  Authentic8 does not warrant that the Authentic8 Service will be provided without interruption or be completely error free.  Authentic8 cannot always anticipate the actions, defensive measures or configuration of, and/or the technical or other problems with, Third Party Web Resources which may result in service interruptions or failures, an inability to access such Third Party Web Resources, a loss of your personalization settings or an inability to submit your credentials on your behalf. Authentic8 cannot assume responsibility for the deletion, non-delivery or failure to store or submit Customer credentials, or the loss of other information or settings on Third Party Web Resources. Authentic8 makes no representations or warranties regarding the suitability of the Authentic8 Service for your intended requirements or purposes. AUTHENTIC8 DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
   2. Customer acknowledges that, despite the security features of the Authentic8 Service, no service can provide a completely secure mechanism of electronic transmission and that there are persons and entities that may attempt to breach Authentic8’s security measures.  Authentic8 will not be liable for any security breach (or other events) caused by circumstances outside of its reasonable control.  
   3. Authentic8 is not responsible for any data or information that Customer, or its Authorized Users, download or access through the use of the Authentic8 Service.  Customer assumes all risk from the use of the Authentic8 Service including any damage to its computer system or devices or the corruption or loss of its data and information when accessing or using the Authentic8 Service.

 

9. CONFIDENTIAL INFORMATION.
   1. In connection with these Terms and the Authentic8 Service (including the evaluation thereof), each Party (“Disclosing Party”) may disclose non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”) to the other party (“Receiving Party”). For the avoidance of doubt, (i) Customer Personal Data is regarded as Customer’s Confidential Information, and (ii) the Authentic8 Service and Evaluation Service, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Authentic8 Service, are regarded as Authentic8’s Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information. 
   2. The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
   3. The Receiving Party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the Receiving Party will, unless expressly prohibited by the terms of the court order or subpoena, promptly notify the disclosing party and provide reasonable and good faith cooperation to the Disclosing Party if the Disclosing Party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).

 

10. UNITED STATES GOVERNMENT CUSTOMERS. 
    1. U.S. Government Rights. The Authentic8 Service offerings are “commercial items” as that term is defined at FAR 2.101.  If Customer is an Executive Agency (as defined in FAR 2.101) of the U.S. Federal Government (“Government”), Authentic8 provides the Authentic8 Service, including any related technical data and/or professional services in accordance with the following: (a) If a right to access the Authentic8 Service is procured by or on behalf of any Executive Agency (other than an Executive Agency within the Department of Defense (DoD)), the Government is granted, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to Authentic8’s customers as such rights are described in this Agreement; (b) If a right to access the Authentic8 Service is procured by or on behalf of any Executive Agency within the DoD, the Government is granted, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software that are customarily provided to Authentic8’s customers as such rights are described in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data provided by Authentic8 to an Executive Agency within the DoD. Except as expressly agreed to in writing by Authentic8, no other rights or licenses are granted to the Government. Any rights requested by the Government and not granted under this Section 10 must be expressly agreed to in writing signed by Authentic8. These Terms, including this Section 10, are in lieu of any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data.
    2. Federal Prime Contract Terms and Conditions. To the extent Authentic8 Services are ordered as part of a Federal prime contracts entered into directly by Authentic8 (a “Prime Contract”), the terms set forth in Sections 6 (Orders; Subscription Terms; Subscription Fees; Payment, Renewal), 7 (Suspension; Termination, 8 (Disclaimer), 11 (Limitation of Liability), and 12 (Indemnity) and  take precedence over conflicting terms at FAR 52.212-4(a), (h), (l), (m), (n), (o), (p), which are tailored to align with the terms herein in accordance with FAR 12.302. In addition, FAR 52-212-4 (j) is not applicable to these Terms because the Authentic8 App and Authentic8 Services are delivered electronically. The tailoring is in accordance with customary commercial practice and does not tailor any of the clauses set forth in FAR 12.302(b) that are not permitted to be tailored. Notwithstanding anything to the contrary in any Order Form, FAR 52.212-4 is not a flow-down to Federal subcontractors and shall not be included in the event the Authentic8 Services are provided indirectly to the Government via a subcontract agreement between Authentic8 and a prime contractor (a “Subcontract”).
    3. Federal Prime Contract or Subcontract Terms and Conditions. Any right to terminate for breach under Section 7 (Suspension; Termination) will be subject to the Contract Disputes Act for Federal end users if the termination for breach is disputed. Authentic8’s right to defend under Section 12 (Indemnity) is subject to the requirements of 28 U.S.C. §516.

 

11. LIMITATION ON LIABILITY. 
    1. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING ANY LOST PROFITS, REVENUE, OR DATA) IN CONNECTION WITH THE AUTHENTIC8 SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE AUTHENTIC8 SERVICE, OR FOR ANY INFORMATION OR DATA TRANSMITTED THROUGH THE AUTHENTIC8 SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY EXCEED THE SUBSCRIPTION FEES PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  
    2. NOTWITHSTANDING THE FOREGOING, (A) THE LIMITATIONS ON LIABILITY DESCRIBED IN SECTION 11.1 ABOVE SHALL NOT APPLY WITH RESPECT TO (i) A BREACH OF AUTHENTIC8’S INTELLECTUAL PROPERTY RIGHTS, (ii) EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12.1 AND 12.2 BELOW, (iii) CUSTOMER’S BREACH OF 4.2, OR (iv) EITHER PARTY’S WILLFUL OR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE AND (B) WITH RESPECT TO DAMAGES RESULTING FROM AUTHENTIC8’S FAILURE TO COMPLY WITH ITS OBLIGATIONS IN THE DATA PROTECTION ADDENDUM, AUTHENTIC8’S AGGREGATE LIABILITY SHALL BE LIMITED TO FIVE (5) TIMES THE SUBSCRIPTION FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION TERM DURING WHICH THE APPLICABLE CLAIM ACCRUED, BUT IN NO EVENT GREATER THAN $500,000. THE LIMITATIONS DESCRIBED IN THESE SECTIONS 11.1 and 11.2 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 

 

12. INDEMNIFICATION. 
    1. Authentic8 will: (1) defend Customer against any third party suit, claim, action or demand originally brought or filed in the United States (a “Claim”) alleging that the Authentic8 Service infringes any copyright or trademark or misappropriates a trade secret of a third party; and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any such Claim.
    2. Customer will: (1) defend Authentic8 against any Claim arising out of or related to (a) Customer’s use of the Authentic8 Service (other than as permitted by the Agreement), (b) any violation of the terms of this Agreement by Customer or its Authorized Users, or (c) Customer’s access and/or use of Third Party Web Resources through the Authentic8 Service which are not caused solely by the specific design and structure of the Authentic8 Service; and (2) indemnify and hold Authentic8 harmless from any final award of damages or settlement amount arising in connection with any such Claim.
    3. The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

 

13. THIRD PARTY AD-ONS. 
    1. Customer acknowledges and agrees that, to the extent the applicable Order Form includes subscriptions or access to, or the use of, third party software, software services and/or data services (collectively, “Third Party Add-Ons”), such Third Party Ad-Ons shall be provided to Customer by the applicable third party subject to its then-current end-user agreement for the provision of such Third Party Ad-Ons, which agreement shall be between Customer and the applicable third party, and which Authentic8 shall provide to Customer upon request.
    2. AUTHENTIC8 BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY THIRD PARTY AD-ONS, INCLUDING WITHOUT LIMITATION, SUCH THIRD PARTY AD-ON’S OPERABILITY OR INTEROPERABILITY WITH THE AUTHENTIC8 SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRD PARTY AD-ONS, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD PARTY AD-ONS ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD PARTY AD-ON’S OPERATION AND PRACTICES AND ITS RESPECTIVE THIRD PARTY AGREEMENT MEET ITS NEEDS.

 

14. RESALE; DISTRIBUTION.
    1. In the event Customer is provided written permission by Authentic8 to resell or distribute the Authentic8 Services described on the applicable Order Form, Customer represents and warrants that (i) it shall conduct  such resale or distribution in a manner which contractually binds Customer’s customer to these Terms in privity of contract with Authentic8 and (ii) it shall be responsible for its customers acts and omissions and compliance with these Terms.
    2. Notwithstanding the foregoing, in the event Authentic8 has entered into a definitive reseller agreement with the party purchasing Authentic8 Services for resale, such terms shall take precedence over the terms herein. 

 

15. SMS INBOX. In the event Customer purchases the right to use SMS Inbox, SMS Inbox shall be included in the definition of the Authentic8 Services and the terms of this Section shall apply to Customer’s use and Authentic8’s provision of SMS Inbox.
    1. SMS Inbox allows an assigned User to receive SMS-based two-factor authentication short codes (i.e., codes sent to User’s ten digit long code “10-DLC”) via, and for use accessing Third Party Web Resources requiring two-factor authentication with, User’s then-current Silo for Research session.  Usage of the service for any other purpose, including without limitation Customer’s use of the assigned 10-DLC to send (vice receive as described above) an SMS or receive an SMS text except as expressly permitted above, is prohibited hereunder. 
    2. Customer’s Subscription Term for SMS-Inbox shall be coterminous with Customer’s Subscription Term to Silo for Research. 
    3. Customer acknowledges and agrees that (i) Third Party Web Resources may blacklist 10-DLCs at their convenience, and as a result, (ii) Authentic8 makes no representations or warranties about the effectiveness of any Customer 10-DLC for for use in connection with accessing a Third-Party Web Resource or that Customer will be able to retain and use the same 10-DLC’s during the Subscription Term.  Authentic8 reserves the right to assign Customer new 10-DLCs at its convenience, provided, however, Authentic8 shall in no event have an obligation to assign new 10-DLCs to Customer in the event all or a portion of Customer’s then-current 10-DLCs become ineffective for accessing some or all Third Party Web Resources.
    4. Authentic8 shall, as a component of its provision of SMS-Inbox manage inbound messages and telephony hardware, including any assigned Subscriber Identity Modules, end devices, and end device messaging applications that enable the service.  
    5. Availability. 
       1. Authentic8’s SMS-Inbox will be available 99.5% of the time per month, excluding: 
          1. For up to one hour each day, Customer’s assigned 10-DLCs may be inaccessible by Customer so Authentic8 can perform maintenance.  
          2. Additional maintenance events that are within the scope and control of Authentic8 will be communicated to affected customers.
          3. Telephony systems and services used to deliver SMS are not subject to Authentic8’s System and Service Acquisition policy. As a result, Customer acknowledges and agrees that Authentic8 bears no responsibility for outages resulting from such telephony systems and services. 
       2. Availability will be determined monthly on a per/bundle (as described in the applicable Order as follows. Except during periods excluded pursuant to subparagraphs (i), (ii) and (iii) above, Authentic8 will ping each Customer 10-DLC every 2 minutes to confirm availability (each, a “Ping”). “Availability” shall equal (Number of monthly Pings to 10-DLCs in the applicable bundle which confirm availability) /  (Number of monthly Pings sent to 10-DLCs in the applicable bundle). 
          1. In the event Authentic8 determines Availability is 90%-94.9%, Customer shall be entitled to, as its sole and exclusive remedy, a “Service Credit” on the next Customer invoice in an amount equal to the 10% of the monthly charge for the applicable bundle of 10-DLCs.  
          2. In the event Authentic8 determines Availability is less than 90%, Customer shall be entitled to, as its sole and exclusive remedy, a “Service Credit” on the next Customer invoice in an amount equal to the 20% of the monthly charge for the applicable bundle of 10-DLCs.
    6. To facilitate the successful processing and delivery of Short Message Service text messages, telephony systems may process and store certain information in plain text for a limited period of time (usually less than 24-hours). This information includes, but is not limited to, the following: Sender Address (Sender Number), Recipient Address (Recipient Number), Message Content, Timestamp, Message Type, Message Length, Message Encoding, and Message Status.
       1. Notwithstanding any other term to the contrary herein, Customer acknowledges and agrees that, with respect to the information described above, Authentic8 shall bear no responsibility for its, or for such telephony systems’, processing and/or storage of such information in accordance with the terms of this Agreement. 

 

16. MISCELLANEOUS.
    1. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
    2. Neither party shall be liable for default if nonperformance is caused by an occurrence beyond the reasonable control of such Party, to include without limitation, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The non-performing party will make reasonable efforts to notify the other Party as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to such Party upon the cessation of such occurrence. Authentic8 is not, however, responsible for the acts of our subcontractors, and access to the Authentic8 Service is dependent on Customer’s ability to access the internet, which Authentic8 is not responsible for.
    3. This Agreement is governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby consent to such venue and personal jurisdiction.  If any portion of this Agreement is found to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
    4. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent.  Notwithstanding the foregoing, either party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, may assign this Agreement in its entirety to such party’s successor without the other party’s consent. Any attempt to assign this Agreement other than as permitted above will be null and void.
    5. Except as expressly provided otherwise herein, all notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt.  All communications to Authentic8 shall be addressed to Authentic8, Attn: General Counsel, 333 Twin Dolphin Dr, Suite 112, Redwood City, CA 94065 and all communications to Customer shall be sent to the Customer address set forth on the Order Form or to such other address as may be specified by either party to the other in accordance with this Section.
    6. Either Party’s failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the waiving party. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.