PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SAFETY CLI CYBERSECURITY SERVICE (AS DEFINED HEREIN) OFFERED BY SAFETY CLI CYBERSECURITY INC. ("SAFETY" OR "COMPANY"). BY MUTUALLY EXECUTING ONE OR MORE SALES ORDERS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, A "SALES ORDER") OR BY ACCESSING OR USING THE SAFETY SERVICE IN ANY MANNER, INCLUDING DURING ANY FREE TRIAL PERIOD, YOU ("YOU" OR “CUSTOMER") AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL SALES ORDERS, THE “AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO "CUSTOMER” AND "YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SAFETY SERVICE IN ANY MANNER.
In this Agreement, Safety and Customer are together referred to as the "Parties” and individually as a "Party”.
1. DEFINITIONS
2. SAFETY SERVICE
Subject to Customer’s payment of the corresponding Fees or during the Free Trial Period, Customer may access and use the Safety Service in accordance with this Agreement and each Sales Order. Customer’s access and use of the Safety Service is subject to the Entitlement specified in the corresponding Sales Order.
3. ACCESS AND USE OF THE SAFETY SERVICE
3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Safety Service.
3.2 Customer agrees to use the Safety Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the Safety Service available to any third party other than to Customer Affiliates if so authorized in the corresponding Sales Order; (b) use the Safety Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, or (c) use the Safety Service to identify technical weaknesses with the intent to perform illegal or immoral acts.
3.3 Customer agrees to not (a) modify, copy or create derivative works of the Safety Service; (b) reverse engineer the Safety Service; (c) access the Safety Service for the purpose of building a competitive product or service; (d); use the Service in excess of the Entitlement; (e) perform any "mirroring" or "framing" of any part of the Safety Service, or create Internet links to the Safety Service which include log-in information, user names, passwords, and/or secure cookies; (f) use the Safety Service, for purposes of product testing, benchmarking or other comparative analysis; or (g) provide access to the Safety Service to a known competitor of Safety or publish any aspect of the Safety Service publicly without the advanced written consent of Safety.
3.4 Customer agrees that it is responsible for configuring the Safety Service, including but not limited to determining what Customer Data is collected, stored, used, displayed, and/or exported.
3.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 SAFETY SHALL INFORM CUSTOMER THEREOF IN WRITING AND MAY SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE SAFETY SERVICE. SAFETY MAY ALSO SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE SAFETY SERVICE IF CUSTOMER IS USING THE SERVICE IN EXCESS OF THE ENTITLEMENT SPECIFIED IN THE CORRESPONDING Sales Order.
4. INTELLECTUAL PROPERTY, CUSTOMER DATA AND INFORMATION SECURITY
4.1 Ownership. Safety retains all right, title and interest to all Intellectual Property Rights in and to the Safety Service, the Documentation, and all underlying the technology, data, software, processes, algorithms, user interfaces, know-how and all modifications and derivative works thereof. Customer acknowledges and agrees that Customer is not entitled to a copy of the underlying software for the Safety Service or Safety's Python Dependency Vulnerability Database.
4.2 Open Source. The Customer acknowledges and agrees that some aspects of the Safety Service, including some of the CVE Data and other public vulnerability data are from open source databases and/or may contain open source software (the “Open Source Materials”). Any Open Source Materials provided hereunder is provided pursuant to such Open Source Materials license terms and conditions. Upon reasonable notice to the Customer, Safety has the right to replace software or data provided to the Customer as part of the Open Source Materials with software or data that has similar functionality. ALL OPEN SOURCE MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND SAFETY DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE MATERIALS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SAFETY OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE MATERIALS EVEN IF SAFETY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SAFETY'S OR ITS AFFILIATES’ NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
4.3 Feedback. To the extent the Customer provides any suggestion, idea, enhancement requests, recommendations or comments (“Feedback”) to Safety, such Feedback will not be considered Confidential Information and Safety will have the unrestricted right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to the Customer. The Customer will have no intellectual property rights in any developments arising from any Feedback.
4.4 Applicable Laws. In the protection of the Customer Data, Safety adheres to the rules of the GDPR and applicable Data Protection Laws and Regulations, and, as the “data processor” abides by the provisions of the DPA. Safety has further executed appropriate sub-processing agreements with the sub-processors listed in the Documentation, such a list to be updated by Safety from time to time.
4.5 Data Protection. Customer acknowledges and agrees that its use of the Safety Service in connection with any personally identifiable information subject to applicable law, is subject to the Safety DPA available at: https://safetycli.com/data-processing-agreement. Each Party undertakes to comply with its obligations under relevant applicable Data Protection Laws and Regulations. To the extent that personal information is processed when the Customer or its Users use the Safety Service, the Parties acknowledge that Safety and its Affiliates are a data processor and the Customer and its Affiliates are a data controller and the Parties shall comply with their respective obligations under applicable Data Protection Laws and Regulations and the terms of the DPA.
4.6 Customer Data. With respect to Customer Data, the Customer:
5. FEES
5.1 Unless otherwise specified on an Sales Order, the Fees shall be as stated in each Sales Order and shall be payable in advance of the relevant Term, and due upon the start date of each Term. In the event Customer is paying by credit card as indicated in an Sales Order, Customer acknowledges that Safety uses a third party for the processing of such payments and that such third party will have access to certain information provided by Customer as a result. For payments made by credit card, Customer’s credit card will be charged at the time the Sales Order is placed and thereafter, at the frequency listed in the Sales Order, which will continue until this Agreement is terminated. For all other payment methods, Fees shall be due and payable within thirty (30) days of the date of the invoice. Any failure to pay Fees by the due date may result in suspension of Customer's ability to access the Safety Service.
5.2 The Fees for Safety Service are tiered into three (3) pricing plans (the “Pricing Plans”) which will be specified on any given Sales Order:
- Basic: for individual developers, freelancers, and small teams;
- Team: for start-up and commercial teams; and
- Enterprise: for larger teams, enterprises, agencies, and governments.
For additional information on Pricing Plans, see https://safetycli.com/resources/plans and the relevant Sales Order.
5.3 Safety's Fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on Safety's net income, employees, or property. If Safety has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority in advance. The failure to include Taxes on an invoice does not relieve Customer of its obligation to pay such Taxes as required in the applicable taxing jurisdiction. All amounts payable to Safety under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. Further, Customer agrees that in the case where Taxes are required to be deducted from payments to Safety, such as but not limited to VAT, GST or similar withholding obligations, Customer will increase the Fees payable to Safety so that Safety receives from Customer (without any liability for Taxes) the amount equal to the total Fees Safety would have received but for such withholding or deductions (the "True Up").
5.4 In the event Customer exceeds the Entitlement, Safety may suspend Customer's access and use of the Safety Service until the access and use becomes consistent with the Entitlement, or Customer pays to Safety additional Fees with respect to the same.
6. SUPPORT
Subject to Safety's receipt of the corresponding Fees with respect to the Safety Service, Safety shall provide to Customer standard support during the Term.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement.
7.2 The Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn’t violate any laws. Safety represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Safety Service. However, Safety may compile Aggregate Data related to Customer’s usage of the Safety Service and may use and/or disclose such Aggregate Data to third parties, to the extent that Customer is not identified as the source of such Aggregate Data and as long as the Aggregate Data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual or the Customer.
7.2 Safety warrants that the operation of the Safety Service will substantially conform in all material respects to the Documentation during the Term. Customer will provide prompt written notice of any non-conformity.
7.3 As Customer’s sole and exclusive remedy, and Safety's entire liability for any breach of the foregoing warranty, Safety will use commercially reasonable efforts to remedy the nonconformance.
7.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, SAFETY MAKES NO WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SAFETY DOES NOT WARRANT THAT THE OPERATION OF THE SAFETY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR ENTIRELY SECURE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE. SAFETY CANNOT BE RESPONSIBLE FOR THE CONSEQUENCES OF ITS CUSTOMERS CHANGING THEIR SOFTWARE BASED ON DATA/RESULTS FROM SAFETY SERVICE. THE CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ANY CHANGES DO NOT INTERRUPT, BREAK, OR OTHERWISE NEGATIVELY AFFECT THEIR PROJECT(S) AND/OR SYSTEM(S).
8. INDEMNIFICATION
8.1 Indemnification by Safety. Safety will defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the use of the Safety Service in accordance with this Agreement infringes or misappropriates such third party’s copyright, trademark or patent (a “Claim Against Customer”), and will indemnify the Customer from any direct damages, reasonable attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided the Customer (i) promptly gives Safety written notice of the Claim Against Customer, (ii) gives Safety sole control of the defense and settlement of the Claim Against Customer, and (iii) give Safety all reasonable assistance, at Safety's expense. If such Claim Against Customer has occurred, or in Safety's opinion is likely to occur, the Customer agrees to permit Safety, at Safety's sole option and expense, either to procure for the Customer the right to continue using the Safety Service or to replace or modify the same so that it becomes non-infringing without loss of functionality, or if none of the foregoing alternatives is reasonably available, terminate the Agreement and refund to the Customer any prepaid unused fees as of the date of termination.
8.2 Indemnification by the Customer. The Customer will defend Safety against any claim, demand, suit or proceeding made or brought against Safety by a third party alleging that Customer Data, or Customer’s use of the Safety Service in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Safety”), and will indemnify Safety from any damages, reasonable attorney fees and costs finally awarded against Safety as a result of, or for any amounts paid by Safety under a court-approved settlement of, a Claim Against Safety, provided Safety (i) promptly gives the Customer written notice of the Claim Against Safety (provided that the obligations under this Section 8.2 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure), (ii) gives the Customer sole control of the defense and settlement of the Claim Against Safety (provided that Customer may not settle any Claim unless it unconditionally releases Safety of all liability and obligation), and (iii) gives the Customer all reasonable assistance, at the Customer’s expense.
8.3 Exclusive Remedy. This “Mutual Indemnification” contained herein under Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9. CONFIDENTIALITY
9.1 As used herein, "Confidential Information" means all confidential 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 the disclosure, including the terms and conditions of this Agreement, inventions, know-how, trade secrets, business and marketing plans, technology and technical information, product plans and designs and business processes disclosed by such Party, and where the Disclosing Party is Safety, Confidential Information shall include the Safety Service, Safety's Intellectual Property Rights, and Safety's Python Dependency Vulnerability Database. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party's option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
9.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, 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 acknowledged by the parties that any other available remedies are inadequate.
9.5 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL SAFETY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO SAFETY DURING THE (12) TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM. DURING THE FREE TRIAL PERIOD, SAFETY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED $500.00.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SAFETY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION
11.1 This Agreement commences on the Effective Date and unless terminated as otherwise provided herein, shall continue until all Sales Orders entered into under this Agreement have expired or been terminated. The Initial Term applicable to each Sales Order commences upon the start date of such Sales Order and upon expiration of the Initial Term, the Safety Service subscription term applicable to such Sales Order shall continue to renew for consecutive terms equal in duration to the Initial Term, unless either party gives notice to the other party of its desire to not renew prior to the end of the then-current Term.
11.4 The parties’ rights and obligations under Sections 4, 5, 7.5, 8-11, and 12 survive termination of this Agreement.
11.5 Upon the effective date of termination of this Agreement Customer’s authorization to access and use the Safety Service will cease. Thirty (30) days following the termination of this Agreement Safety will have no obligation to maintain any Customer Data or retain copies or records of Customer Data in its system or otherwise.
12. GENERAL
12.1 No Partnership. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
12.2 Notices. Any notices, reports or other communications required under this Agreement shall be in writing and shall be sufficient if delivered by hand, courier, mail, or email addressed to Safety or the Customer to such address as the Party shall advise the other Party in writing. Any such notices, reports or other communications shall be deemed to have been received by the Party(s) to whom they were addressed upon delivery by hand, mail, courier, or email, when received.
12.3 No Amendment. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Safety.
12.4 Entire Agreement and Precedence. To the extent of any conflict between this Agreement and any other Documentation or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a Customer purchase order or similar ordering document (other than a Sales Order or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the Parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Unless otherwise agreed to in writing by the Parties, each Sales Order is independent from, and has no impact upon, any other Sales Order. Each Sales Order is enforceable according to the terms and conditions contained in such Sales Order. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) applicable Sales Order, (2) any exhibit to this Agreement, (3) this Agreement, and (4) the Documentation.
12.5 Publicity. Customer hereby authorizes Safety to list Customer’s name and logo on Safety's website and in related marketing materials to identify Customer as a Safety customer, provided that no Customer Confidential Information is disclosed. Additionally, Customer agrees to participate in customer reference and related programs, to the extent so authorized in writing by Customer (email shall suffice).
12.6 Waiver and Severability. Failure or delay by either Party to exercise its right or remedy provided under this Agreement does not mean a waiver of that or any right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. If any provision of this Agreement is found to be invalid or unenforceable by a court, then the other provisions of this Agreement shall remain in force and it will be replaced with a provision that achieves the same purpose as the original to the maximum extent possible.
12.7 Force Majeure Event. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to Force Majeure Event.
12.8 Assignment. A Party will not, without prior written consent from the other Party (such consent not to be unreasonably withheld), assign, or transfer this Agreement, except in case of assignment to such Party’s Affiliates or in connection with change of control, merger, corporate restructuring, sale of all or substantially all of such Party’s assets provided that in each of the foregoing exceptions, (i) the assigning Party shall promptly notify the other Party of such assignment; and (ii) the assignee undertakes to comply with the terms of this Agreement. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.9 Governing Law and Resolving Disputes. This Agreement shall be governed exclusively by the laws of British Columbia, Canada. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated herewith or derived therefrom, shall be referred to and finally resolved by arbitration in accordance with the arbitration rules of the ADR Institute of British Columbia. The case shall be administered by the ADR Institute of British Columbia in accordance with its arbitration rules by one arbitrator. The place of arbitration shall be Vancouver, or, if agreed to between the Parties, any other location in the province of British Columbia and the language of the arbitration shall be English.
