Terms & Conditions

THESE BREACH SECURITY TERMS AND CONDITIONS (THE “TERMS”) AND THE INVOICE(S)  WHICH INCORPORATE THEM GOVERN THE PURCHASE AND/OR LICENSE OF ANY GOODS OR SERVICES FROM BREACH SECURITY, INC. (“BSI”) BY THE PERSON OR ENTITY IDENTIFIED AS “CUSTOMER” ON THE FACE OF THE INVOICE (THE “INVOICE”), AND TOGETHER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BSI AND CUSTOMER WITH RESPECT TO THE PURCHASE AND/OR LICENSE OF THE GOODS AND SERVICES DESCRIBED HEREIN, SUPERSEDING ALL RELATED PRIOR COMMUNICATIONS AND AGREEMENTS. IN THE EVENT OF A CONFLICT WITH THESE TERMS, THESE TERMS SHALL CONTROL UNLESS EXPRESSLY SUPERSEDED IN A SUBSEQUENT WRITING SIGNED BY THE PARTIES.

Definitions

  • “Ancillary Software” means the object code software programs, including Web Server Agent, signing software and administration software, licensed with the Product for use with the Product.
  • “Connections” means concurrent users requesting a web page from a server or bank of servers.
  • “Documentation” means the technical publications prepared and delivered to Customer by BSI or provided to Customer on the BSI website relating to use of the Product, such as reference, user, installation, systems administrator and technical guides.
  • “Hot Backup” means a second Product unit purchased by Customer for the limited purpose of replacing the primary Product unit in the event of its failure to operate.
  • “Maintenance and Support” or “Support” means the BSI technical support and maintenance described in these Terms.
  • “Maintenance Release” means a minor improvement to the current version of the Product’s software that replaces the current version. A Maintenance Release includes bug fixes, enhancements to the capability of an already partially supported feature or changes in the number, type, and/or specification of the supported platform(s).
  • “Major Release” means a release of the Product’s software that contains major changes in features and/or functionality.
  • “Product” means the content security product set forth in the Invoice(s) which incorporates these Terms, including any BSI proprietary object code software embedded in the product and any accompanying Documentation supplied by BSI.
  • “Site” means a distinct URL on an IP Address (more than one URL may be assigned to an IP address and each is considered a site) or, where a URL has multiple IP addresses, each such IP address.
  • “Software” means the Product’s software, the Ancillary Software and any Maintenance Releases and Major Releases thereto, as well as any accompanying Documentation supplied by BSI. References herein to the Software exclude reference to the open source components of the Software, which are covered by Section 2.4 below.

1. Scope of Terms

BSI sells the Product, Support, professional services and training and licenses Software in accordance with these Terms. Customer wishes to purchase the Product from BSI and to obtain certain services, each as more particularly defined in the attached Invoice(s). BSI and Customer agree to these Terms and to such Invoices which incorporate these Terms.

2. Software License; Proprietary Rights

2.1 License Grant. Subject to the Terms, the applicable Invoice and any Documentation accompanying the Product and Software, BSI grants to Customer a nonexclusive, nonsublicensable, nontransferable, perpetual license to use the Software, solely in conjunction with the Product, for up to the number of Sites and the number of Connections licensed, as set forth in the Invoice. Customer may make a single copy of the Ancillary Software and of the Documentation solely for archival, emergency back-up and disaster recovery purposes provided that all copyright and other proprietary notices of BSI and its licensors are reproduced. BSI retains all rights not specifically granted to Customer herein.

2.2 Proprietary Rights. The Product and the Software are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Title, ownership rights, and all intellectual property rights in and to the Product and the Software shall remain the sole and exclusive property of BSI and/or its licensors. “Intellectual property rights” shall include all patents, copyrights, trade names, trademarks, trade secrets, know-how, hardware configurations, computer software programs or applications, circuit or logic designs, or any proprietary information or technology rights included in the Product and/or the Software. Customer agrees not to disclose, provide or otherwise make available such intellectual property rights to any third party. Notwithstanding anything to the contrary except as may be set forth in an applicable Invoice, Customer shall own the hardware components of the Product.

2.3 License and Use Restrictions. Except as expressly authorized in these Terms or in the Documentation, Customer shall not: (i) copy, in whole or in part, any Software or Documentation provided with the Product; (ii) attempt to disassemble, decompile or otherwise reverse engineer the Product and/or the Software or otherwise attempt to learn the circuit, logic, or system design, source code, structure, algorithms or ideas underlying the Product and/or the Software; (iii) create derivative works of the Product and/or the Software; (iv) attempt to circumvent any password restrictions embodied in the Product and/or the Software; (v) install any other software on the Product; (vi) encourage or allow others to do any of the foregoing; or (vii) publish or provide any results of benchmark tests run on the Product to a third party without BSI’s prior written consent. Customer may not exceed any use restrictions including content type and capacity limitations set forth in the applicable Invoice. 

2.4 Open Source. Certain open-source components of the Software (which are identified by BSI in the Documentation) are being distributed by BSI to Customer under the terms of the Free Software Foundation’s General Public License (“GPL”) (see www.fsf.org/copyleft/gpl.html) and, as applicable, other public licenses, and thus are not covered by the licenses granted in these Terms. Each open-source component has its own copyright and applicable license conditions, and Customer must review the licenses within the documentation to understand Customer’s rights under them. If BSI does not include the source code versions of such software in its materials, Customer may request that BSI provide a machine-readable copy of the source code for such components pursuant to the terms of their respective public licenses (e.g., within three (3) years of delivery of the applicable component under the GPL). Customer’s use of such open-source software is subject to the GPL and the other public licenses disclosed in the Documentation. All open-source components incorporated into the Software are distributed on an “as is” basis WITHOUT WARRANTY OF ANY KIND, and are subject to the further disclaimers in their applicable documentation.

2.5 Hot Backup. In the event that Customer purchases a Hot Backup for a primary Product unit (“primary unit”) Customer may only use the Hot Backup in the event of failure of the primary unit. Customer will promptly report any failure of the primary unit to BSI. 

2.6 Audit Right. BSI reserves the right to audit Customer’s use of the Product sold subject to Site and Connections limitations. Upon ten (10) days’ written notice by BSI, Customer agrees to permit BSI reasonable access to Customer’s facility and to the Product so that BSI may monitor Customer’s use of the unit(s) in question. In the event that the audit reveals that Customer has exceeded agreed limitations, BSI reserves the right to charge Customer the difference between the price paid and the full unrestricted use price of the unit. 

3. Maintenance and Support

Subject to Customer’s continued payment of the annual Support fees, BSI agrees to make Maintenance and Support available as described in this Section 3 and the applicable Invoice. 

3.1 Maintenance and Support

a.) Description of Services. Maintenance and Support means that BSI will make available to Customer: Maintenance Releases when and if made available by BSI for commercial release, and appropriate Documentation, and technical assistance with respect to the Product, including (i) clarification of functions and features; (ii) clarification of Documentation; (iii) technical support and guidance in the operation of the Product; (iv) Product error analysis and correction; and (v) a replacement Product in the event it fails. BSI will also make Major Releases available to Customer, however BSI reserves the right to charge additional fees for access to new features and functionality contained in such Major Releases. Notwithstanding the foregoing, any bug fixes or enhancements shipped with a Major Release that would normally be included in a Maintenance Release will be made available to Customer. Premium Support will be available twenty-four (24) hours per day, seven (7) days per week via telephone, electronic mail and facsimile. Basic Support will be available during standard business hours via telephone, electronic mail and facsimile.  BSI will use commercially reasonable efforts to provide error corrections, work-arounds or replacements for the Product or Software, as applicable, for the most severe errors as soon as possible. Support will be made available only with respect to versions of the Product that, in accordance with BSI policy, are then being supported by BSI, but at a minimum shall include the current and two immediately preceding Major Releases. BSI’s Support policies and procedures, including limitations on and exclusions from Support and BSI’s product end-of-life policy will be posted and updated on BSI’s website at www.breach.com.

b.) Conditions for Providing Support. Customer’s ability to receive Support is conditioned on the following: (i) Customer must make reasonable efforts to solve the problem after consulting with BSI; (ii) Customer must provide BSI with sufficient information and resources to correct the problem either at BSI’s Customer Support Center or via dial-up access at Customer’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; (iii) Customer must promptly install all Maintenance Releases; and (iv) Customer must procure, install and maintain all equipment, telephone lines, communi­cation interfaces and other hardware necessary to operate the Product.

c.) Exclusions from Support. BSI is not obligated to make Support available to Customer if (i) the Product has been changed, modified or damaged (excluding modifications made by or under the direct supervision of BSI); (ii) the problem is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of BSI or by a change in the hardware and software environment set forth in the applicable Invoice (unless such change is expressly agreed to in writing by BSI); (iii) the Customer’s problem is with third‑party software not licensed through BSI; (iv) Customer has not installed and implemented Maintenance Release(s) so that the Product is in the form currently supported by BSI; (v) Customer has not paid the Maintenance and Support fees when due; or (vi) Customer has violated any of the restrictions set forth herein. Payment of the Support fee does not entitle Customer to on-site support. Customer may purchase on-site support services for additional consulting fees at BSI’s then-current time and materials rates, as well as all travel and lodging expenses incurred by BSI personnel. To the extent that BSI determines that a problem is caused by any of the factors set forth in this section, BSI may, in its sole discretion and in consideration of payment of BSI’s standard professional services fess, agree to assist Customer with correction of the problem.

3.2 Commencement and Renewal of Support. BSI shall charge Customer annually for Maintenance and Support under BSI’s then current fees and policies, and shall provide Customer reasonable notice of Support fees due. If Customer elects not to renew Maintenance and Support, Customer shall notify BSI of its intent not to renew at least sixty (60) days prior to the end of the applicable term. The reinstatement fee specified in Section 3.5 shall apply at the time Customer reinstates Maintenance and Support.

3.3 Customer’s Responsibilities. Customer agrees to provide BSI with reasonable access to Customer’s personnel and equipment, if necessary, during normal business hours in order to provide Maintenance and Support. Customer agrees to document and promptly report all errors or malfunctions of the Product to BSI.

3.4 Suspension of Service. BSI reserves the right to suspend performance of its Support obligations if Customer fails to pay the Maintenance and Support fee or any amount payable to BSI under these Terms within thirty (30) days after such amount becomes due.

3.5 Reinstatement of Support. In the event that Customer elects to reinstate Maintenance and Support following any period in which such Maintenance and Support was discontinued, in addition to the payment of the annual Support fees from and after such reinstatement, Customer agrees to pay a reinstatement fee equal to one hundred and twenty-five percent (125%) of the Support fees that would have been payable during the period of discontinuation.

4. Payment

4.1 Orders and Delivery. Customer shall submit a purchase order to BSI referencing the contract number, if any, set out on the Invoice and the applicable Invoice number for each order hereunder. BSI will ship physical orders F.O.B. BSI’s facility. When requested in writing or specified in the Invoice, BSI will make Software available for electronic download by Customer via the Internet.

4.2 Fees and Payment. Customer shall pay BSI the amounts set forth on the Invoice(s) for the Product and any related products and services sold hereunder together with the applicable Support fees and shipping costs. All amounts due shall be paid within thirty (30) days of receipt of the invoice by Customer. Any amounts not paid when due (including Support fees) will be subject to interest at the rate of the lesser of 1.5% per month or the highest amount permissible under applicable law.

4.3 Taxes. All charges and fees provided for in the Invoice(s) and these Terms are exclusive of and do not include any taxes, duties or similar charges imposed by any government ("Taxes"). Customer agrees to pay or reimburse BSI for all such Taxes (other than taxes on the net income of BSI). If Customer is outside the United States, Customer agrees that the amounts to be remitted to BSI are to be the actual amounts due without deduction of withholding taxes or other assessments by authorities anywhere in the foreign location, which withholding taxes or assessments Customer agrees to pay. Customer will promptly furnish BSI with certificates evidencing payment of such amounts.

4.4 Security Interest. Customer hereby grants to BSI a security interest covering each shipment of the Product and related products made hereunder (and any proceeds thereof) in the amount of BSI’s Invoice for such shipment, until BSI receives payment in full. Customer agrees to execute any and all documents required by BSI to perfect such security interest in the event BSI does not receive timely payment by Customer as required in this Agreement.

5. Limited Warranty/Limitations On Liability

5.1 Limited Warranty. 

a.) BSI warrants to Customer and for Customer’s benefit only that the Product as purchased (and Software licensed) from BSI will perform in substantial accordance with the Documentation for a period of ninety (90) days from the date Customer receives the Product. If during this time period the Product does not perform as warranted, BSI shall, at its option, undertake to replace or repair the Product free of charge or, if neither of the foregoing is commercially practicable, terminate these Terms and refund to Customer the amounts paid for such Product. THE FOREGOING IS BSI’S SOLE LIABILITY FOR AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY. 

b.) Returned Product hardware and components shall become the property of BSI. BSI provides the same warranty, as described in the preceding paragraph, for replacement Product hardware and components except that the period of coverage shall be the remaining time of the original warranty period for the replaced Product hardware, but such period will not be less than thirty (30) days. 

c.) The foregoing warranty is void on any Product hardware or component that (i) has not been properly installed or maintained according to BSI’s maintenance recommendations, (ii) used outside the scope of the applicable license, (iii) modified, altered, operated in an unwarranted environment or in any way tampered with, or (iv) has been treated with abuse or negligence. Any attempt to open the physical hardware or any attempt to load or run any software on the product without BSI’s approval will void all warranties.

5.2 Disclaimer. EXCEPT AS PROVIDED IN SECTION 5.1, THE PRODUCT, THE SOFTWARE AND ANY SERVICES ARE PROVIDED "AS-IS"; BSI AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE PRODUCT OR THE SOFTWARE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE PRODUCT OR THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND BSI HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES.  BSI MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE PRODUCT AND SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE PRODUCT AND SOFTWARE.

5.3 Limitations on Liability. BSI, ITS LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY, INCLUDING TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE PRODUCT OR THE SOFTWARE, OR IN ANY OTHER WAY ARISING OUT OF THE INVOICES OR THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER. BSI’S CUMULATIVE LIABILITY UNDER THE INVOICES(S) AND THESE TERMS SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO BSI.

Some States do not permit disclaimers of certain warranties or limitations on certain types of liability under certain circumstances; consequently, some of the foregoing disclaimers and limitations may not be applicable to Customer, in whole or in part.

6. Confidentiality

Customer acknowledges that the Product and the Software contain valuable confidential information and trade secrets of BSI and/or its licensors; therefore, Customer will treat and hold the Product and Software and the terms of the Invoices and these Terms in strict confidence and will restrict access to the Product and Software to Customer’s employees. To the extent the performance of its obligations under these Terms requires BSI to be exposed to any information that is identified prior to disclosure by Customer as being confidential or proprietary, BSI shall not disclose such information to any third parties and will use such information only to the extent necessary to perform its support and maintenance services under the Invoices and these Terms; provided that this Section 6 shall not apply to information in the public domain, received from third parties under no obligation of confidentiality or previously known by BSI. In addition, the restriction on disclosure will not apply to confidential information which is required to be disclosed by a court or government agency, provided that the receiving party gives the disclosing party prompt written notice of same and cooperates with the disclosing party to seek a protective order or other available protections to limit such disclosure. BSI will hold these Terms in confidence, but may reasonably use the name of Customer as a customer of BSI or the Product. BSI shall not publicly reveal Customer as a customer of BSI except to the extent specifically approved by Customer.

7. Indemnification

7.1 BSI agrees to indemnify and defend Customer from and against any and all claims, actions or proceedings, to the extent arising out of any claim that the Product infringes or violates any U.S. patent, issued as of the date of BSI’s  delivery of the allegedly infringing Product, or any copyright or trade secret right of any third party; so long as Customer: (i) provides prompt written notice to BSI of such claim; (ii) fully cooperates with BSI in the defense and/or settlement thereof, at BSI’s expense; and, (iii) allows BSI to control the defense and all related settlement negotiations. THE FOREGOING IS SUBJECT TO THE LIMITATIONS OF SECTION 5.3 AND IS IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, WHICH ARE HEREBY DISCLAIMED.

7.2 If it is, or if in the reasonable opinion of BSI it is probable that it will be, determined by a court of competent jurisdiction that the Product or the sale or use thereof infringes any patent, copyright, trade secret or trademark of a third party or if BSI is enjoined from distributing the Product, then BSI, at its sole option and expense, may: (i) procure for Customer the rights to use the Product to the same extent as those granted under these Terms; (ii) replace the Product with another product which complies with the specification of the Product; (iii) modify the Product, to avoid infringement while continuing to have materially the same functionality; or (iv) terminate these Terms and return to Customer the license fees, less an amount commensurate with Customer’s period of use of the Product, as amortized over a three-year period.

7.3 Customer agrees that this Section 7 represents BSI's sole obligation to Customer and shall be Customer’s sole and exclusive remedy pursuant to these Terms for intellectual property infringement.

7.4 Limitations. BSI shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from: (i) any combination, operation, or use of the Product with any programs, process or equipment not supplied by BSI; (ii) any modification of the Product by a party other than BSI; and (iii) Customer’s failure, within a reasonable time following notice by BSI, to implement any replacement or modification of the Product provided by BSI. Customer will indemnify BSI and its officers, directors, agents and employees from all damages arising out of: (i) any breach by Customer of its obligations, representations and warranties under these Terms and (ii) except for claims for which BSI is obligated to indemnify Customer herein, any other claims arising out of Customer’s use of the Product.

8. Term and Termination

8.1 These Terms will take effect upon the earlier of delivery of the Products or Services set forth in the Invoice or the date of payment of the Invoice amount by Customer and, except for BSI’s obligations to provide annual Maintenance and Support under Section 3, will remain in force in perpetuity unless terminated earlier in accordance with these Terms or breached by either party. In no event shall termination of these Terms entitle Customer to a refund of any portion of the purchase price of the Product as purchased hereunder. BSI may, by written notice to Customer, terminate these Terms immediately if any of the following events ("Termination Events") occur: (a) Customer fails to pay any amount due BSI within thirty (30) days after BSI gives Customer written notice of such nonpayment; (b) Customer is in material breach of any non-monetary provision of these Terms, which breach, if capable of being cured, is not cured within thirty (30) days after BSI gives Customer written notice thereof; or (c) Customer is in breach of the license grant(s) in Section 2.

8.2 Termination of these Terms will not affect the provisions relating to the payment of amounts due, or the provisions of Sections 2, 4.2, 4.3, 4.4, 5.2, 5.3, 6, 7, 8.2 and 10, which provisions will survive termination of these Terms.

9. Notice

Notices under these Terms shall be sufficient only if in writing and transmitted via facsimile (with confirmation of receipt), personally delivered, delivered by a major commercial rapid delivery courier service or mailed, postage or charges prepaid, by certified or registered mail, return receipt requested to a party at its addresses set forth on the Invoice or in the most recent Invoice (attn: Chief Financial Officer) or as amended by notice pursuant to this Section. If not received sooner, notice by mail shall be deemed received five (5) days after deposit in the U.S. Mail.

10. Miscellaneous

10.1 Assignment. Neither these Terms nor any rights under these Terms may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law without the prior written consent of BSI. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

10.2 Severability. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law.

10.3 Entire Agreement. The parties agree that these Terms (including any exhibits and Invoices hereto) represent the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. 

10.4 Modification and Amendment. These Terms may not be amended, except in writing, signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Customer may use in connection with the acquisition of the Product or related services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, these Terms, regardless of any failure of BSI to object to such terms, provisions or conditions.

10.5 Choice of Law; Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of California as applied to agreements made, entered into and performed entirely in California by California residents. Customer agrees that any dispute regarding these Terms and the respective Invoices will be heard in the state or federal courts having jurisdiction in San Diego County, California, and Customer agrees that Customer shall be subject to the personal jurisdiction of such courts. The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods. The prevailing party in any action brought hereunder shall be entitled to its reasonable attorneys’ and expert witness fees and court costs in addition to any other remedy available to it.

10.6 Export Compliance. Customer shall not export, directly or indirectly, any information acquired under these Terms or the Product or the Software to any country outside the United States without the prior written approval of BSI which approval may be withheld for any reason.

10.7 Force Majeure. Except for Customer’s payment obligations, a party shall not be liable for any loss, damage, or delay or be deemed to be in breach of these Terms if its failure to perform under these Terms results from events which are beyond the reasonable control of such party.

10.8 Waiver. The waiver by either party of a breach of any provision of these Terms or any attachment will not operate or be interpreted as a waiver of any other or subsequent breach.

10.9 Allocation of Risk. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in these Terms are material, bargained for bases of this agreement between the parties and that they have been taken into account and reflected in determining the consideration to be given by each party under these Terms and in the decision by each party to enter into this agreement.

10.10 Cumulative Remedies.  Except as expressly set forth in these Terms, all remedies available to either party for breach of these Terms are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

10.11 U.S. Government Restricted Rights. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software or Documentation by the United States Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.