Terms of Service
Last Updated March 1, 2021
This terms of service (this “Agreement”) is the main agreement between Firmalyzer BV. (“Firmalyzer”, "we" or "us" or "our") and the end customer and user of the Service (as defined below) (the “Customer” or “you”), including as part of a trial or Proof of Value (POV).
By accepting this Agreement, either by clicking a box indicating its acceptance or by executing an Order Form (as defined below) that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Firmalyzer have executed a written agreement governing Customer’s access to and use of the Service, then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses the Service (the “Effective Date”). Firmalyzer reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Service following such changes.
In consideration of the mutual covenants and agreements set forth in this Agreement, the parties hereby agree as follows:
1. Certain Definitions
The following terms have the meanings ascribed to them below. Other capitalized terms are defined in the Order Form or elsewhere in this Agreement.
“Agents” are distinct installations of Firmalyzer agent software for a given account, each tied to a specific Organization in Customer's Environment and used in conjunction with the SaaS Platform.
“Customer Data” means the data transferred to Firmalyzer by the Customer for the purpose of using or facilitating use of the Services.
“Customer Network” means Customer’s and/or its Affiliates’ core business network that either Firmalyzer has identified prior to the Subscription Term or Customer has requested Firmalyzer to include in its provision of the Service to Customer.
“Data” means the raw data Customer uploads or submits to Firmalyzer and the resulting data from the processing of such raw data using the Firmalyzer Services.
“Deliverables” means the Reports and any work product created as part of Professional Services that is designated in writing as work-made-for-hire.
“Documentation” means the documentation, specifications, or other written or electronic materials provided to Customer by Firmalyzer related to the Service.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Firmalyzer related to the Firmalyzer Services.
“Firmalyzer Data” means the Software and any data that is generated by Firmalyzer (without reference to the Customer Data) in the course of providing the Service or otherwise created or collected by Firmalyzer as a result of its internet searches.
“Internal Purposes” means internal business use within Customer’s systems, networks, and devices (“Customer's Environment”), to conduct scanning and monitoring of computer networks, as well as testing and evaluation of the Firmalyzer Services in order to provide Feedback. Such purposes also include use of Firmalyzer Services as part of services Customer provides to third party clients (“Clients''), to scan and monitor the computer networks of such Clients, so long as the product is not incorporated into Customer’s, a Client’s or other third-party’s, product or software.
“Order Form” means a purchase order or other ordering document delivered to Firmalyzer by Customer or a reseller setting forth, at a minimum, the start and end dates of the Subscription, the Subscription Term, the Fees, and the payment terms.
“Organization” is a distinct sub-entity within Customer's Environment or Customer’s Client’s environment, on which Agents will be deployed to scan and monitor the relevant computer networks.
“Reports” means the reports exported from the Service by Customer (or prepared by Firmalyzer for Customer’s benefit) by means of functionality available in the Service.
“Scanner” means all discovery tools, software, scripts and code that are downloadable from the SaaS Platform or otherwise provided by Firmalyzer and used, either on a stand-alone basis or in conjunction with the SaaS Platform, to scan and monitor the systems, networks, and devices.
“Services” means any and all of the services, software and other offerings provided by Firmalyzer pursuant to this Agreement, including the SaaS Platform, Scanners and Agents, the offerings provided through https://firmalyzer.com, any mobile applications and APIs provided by Firmalyzer, and all such services and software labeled as trial, preview or otherwise. Firmalyzer Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by Firmalyzer.
“Software” means all software applications, source code, development tools, libraries and utilities, including any modifications, updates, upgrades, and enhancements thereto, that Firmalyzer uses, creates, and/or maintains in order to provide the Service to its customers.
“Subscription Term” means the length of time the Customer is granted access to the Service, as indicated on the applicable Order Form.
2. Provision of Service
2.1 Right to Access and Use the Service. Subject to the terms of this Agreement, Firmalyzer grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited right to access and use the Service during each Subscription Term for its own internal purposes (the “Subscription”).
2.2 Professional Services. Firmalyzer may provide additional training, consulting, and advanced support services as agreed between the parties and set forth either in an addendum to this Agreement or on the Order Form (the “Professional Services”). Customer will own any Deliverables created by Firmalyzer as part of the Professional Services. Firmalyzer will own any and all improvements to the Service or Software made by or on behalf of Firmalyzer that arise out of the Professional Services. Any conflict between the terms of this Agreement and an Addendum will be resolved in favor of this Agreement.
2.3 Restrictions. Customer will not, and will not permit any third-party to: (a) use the Service other than in accordance with the terms of this Agreement; (b) decompile, disassemble, reverse engineer, or attempt to circumvent or exceed the account limitations or requirements of the Software or the Service; (c) sell, rent, lease, or otherwise commercially exploit the Service; (d) use the Service for the purpose of building a similar or competitive product or service to the Service, (e) use the Service, Reports, and/or any Firmalyzer Data in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights, including any cyber-offensive operations aimed to damage, disrupt, degrade, or otherwise harm any third-parties, whether directly or indirectly; or (f) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service (each of (a) – (f), a “Prohibited Use”).
2.4 Reports. During the Subscription Term, Firmalyzer may make available Reports via the Service, or Customer may utilize the features and functionality available in the Service to download and/or export such Reports, so long as Customer does not (i) remove, modify, or obscure any copyright or other proprietary notices included on the Reports, (ii) make any copies (e.g., printouts, screenshots, or other images) of any such materials that are not made available via the features or functionalities available in the Service, or (iii) share, disclose, or otherwise provide the Reports (in whole or in part) to any third-party (other than Customer’s affiliates), without the prior written approval of Firmalyzer. Notwithstanding the foregoing, Customer may make a reasonable number of copies of any Report for its own internal business use.
2.5 License to Customer Data. If Customer provides any Customer Data to Firmalyzer, then Customer hereby grants, and represents and warrants that it has all rights necessary to grant, Firmalyzer a limited right to use the Customer Data during the Subscription Term for the purpose of making the Service available to Customer.
3. Term and Termination
3.1 Term. This Agreement will be effective from the earlier of (i) the date provided above, and (ii) the date on which you first installed, downloaded or accessed a copy of the Firmalyzer Services, and shall continue until terminated, as set forth below (the “Term”).
3.2 Termination. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination.
3.3 Effect of Termination. Immediately upon termination, (i) all licenses granted under this Agreement will immediately terminate and you will immediately cease all use of the Firmalyzer Services; (ii) you will destroy the Firmalyzer Services in your possession, or upon request by Firmalyzer, return to Firmalyzer the Confidential Information that is in your possession or control; and (iii) any and all of your payment obligations for each Order will immediately become due. Upon Firmalyzer’s request, you will certify in writing that you have returned or destroyed all copies of Firmalyzer’s Confidential Information. Sections 1, 2.3, 3.3, 4, 5, 7, 8.2, 9, 10, and 11, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.
3.4 Suspension. Firmalyzer reserves the right at any time to modify, suspend, or discontinue the Firmalyzer Services (or any portion thereof) with or without notice, and Firmalyzer shall not be liable to you or any third party for any such modification, suspension or discontinuance.
4. Fees and Payment
4.1 Fees. Customer will pay the fees for the Subscription set forth on the applicable Order Form (the “Fees”). Following receipt of the Order Form from Customer, Firmalyzer will submit an invoice to Customer for the Subscription, and payment will be due on the terms set forth on the Order Form. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
4.2 Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Firmalyzer’s net income. If Firmalyzer has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Firmalyzer with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1 Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Firmalyzer’s Confidential Information includes the Service, the Reports, and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data and any Deliverables. Both parties will treat any Firmalyzer Data concerning Customer’s network topology, including the Reports, as Confidential Information of the other party. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
5.2 Confidentiality Obligations. Each party will use Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, and with at least a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives. Each party’s obligations under this Section 5 will continue for a period of two years following termination of the Agreement.
5.3 Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by laws so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure in a timely manner. If no protective order or other remedy is obtained by the Disclosing Party, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
6.2 Data Warranty and Obligations. You represent, warrant and agree that you have all rights to provide the Data and other materials that you provide or make available to Firmalyzer. You acknowledge and agree that you are solely responsible for all Data and for your conduct while using the Firmalyzer Services. You acknowledge and agree that: (i) you will evaluate and bear all risks associated with your use and distribution of all Data; (ii) you are responsible for protecting and backing up the Data; (iii) you are responsible for protecting the confidentiality of all Data in your possession and control; and (iv) under no circumstances will Firmalyzer be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of your use, deletion, modification, or correction of any Data. You have full discretion and control on how to store, protect, remove or delete any Data on the Firmalyzer Services and Firmalyzer shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.
7.1 Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and the Deliverables and does not by means of this Agreement transfer any rights in the Customer Data to Firmalyzer, except for the license grants in Section 6.1.
7.2 Firmalyzer Property. Firmalyzer owns and retains all right, title, and interest in and to the Service and Firmalyzer Data. Except for the limited license granted to Customer in Section 2.1, Firmalyzer does not by means of this Agreement or otherwise transfer any rights in the Service or Firmalyzer Data to Customer, and Customer will take no action inconsistent with Firmalyzer’s intellectual property rights in the Service or Software.
8. Representations and Warranties
8.1 Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
8.2 Disclaimer. With the exception of the limited warranties set forth in Section 6.1, the Service is provided “as is” to the fullest extent permitted by law. Firmalyzer expressly disclaims all other warranties, express or implied, including warranties of performance, merchantability, fitness for any particular purposes, and non-infringement. Firmalyzer does not warrant that the Service is error-free, will perform uninterrupted, or will meet Customer’s requirements. Firmalyzer disclaims liability of any kind arising from Firmalyzer’s provision of the Service and delivery of any Reports (except to the extent the liability arises from Firmalyzer’s gross negligence or willful misconduct).
9. Limitation of Liability
In no event will Firmalyzer be liable to you for any special, indirect, incidental, consequential or punitive damages, or for any loss of use, data, goodwill or profits, business interruption, or costs of procuring substitute beta software, arising out of or in connection with this agreement or the use or performance of the Firmalyzer services. Without limiting the foregoing, Firmalyzer will have no liability or responsibility for any business interruption or loss of data arising from the automatic termination of the license rights granted herein and any associated cessation of the Firmalyzer services, its functions, any unanticipated or unscheduled downtime for any reason or any deletion, corruption or damage of data on or through the Firmalyzer services. Firmalyzer’s total cumulative liability to you, from all causes of action and all theories of liability in connection with this agreement, including all order forms, will be limited to and will not exceed one hundred euros (€100.00).
The foregoing limitations, exclusions and disclaimers shall apply regardless of whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not the party has been advised of the possibility of such loss or damage. Insofar if applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy.
10. Governing Law; Dispute Resolution
This Agreement will be governed by the laws of Belgium and by international copyright regulations and treaties. The exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement shall be of the courts of Brussels. The Parties will always try to resolve any possible disputes concerning the conclusion, validity, interpretation, execution or termination of this Agreement in an amicable way. If no amicable settlement can be reached, the Parties will attempt to settle this dispute through mediation by a mediator approved by the Belgian Federal Mediation Committee and in accordance with the Cepani Mediation Regulations (email: [email protected]). The mediation will start no later than 15 days after one Party has served the mediation request to the other Party. The duration of the mediation may not exceed 90 calendar days, except as expressly agreed upon by the Parties. In case the mediation would fail, the Parties will submit the dispute to arbitration in accordance with the Cepani Arbitration Regulations (email: [email protected]). Nothing in this Section shall be deemed to prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
This Agreement is the entire agreement between Customer and Firmalyzer and supersedes all prior agreements concerning the subject matter hereof and may not be amended except by a writing signed by both parties. Customer and Firmalyzer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between them. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. Any notice provided under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested), or via electronic mail, to the addresses on the Order Form. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals.