Terms and Conditions
v.01-20 Please read these terms and conditions carefully as they govern your use of this website and/or the Project Ares software. By using Circadence Corporation’s (“Circadence,” “We” or “Us”) website, or the Project Ares software, you agree to be bound by the following Terms and Conditions. We reserve the right to modify these Terms and Conditions from time to time, at any time and without notice. Please review these Terms and Conditions when you visit our website so that you will be apprised of any changes made to them.
This website, any software made available from this website, and information or documents within this website is provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
This website could include technical inaccuracies or typographical errors and we assume no responsibility for the accuracy or completeness of the information contained here. Changes are periodically made to the information herein; these changes will be incorporated in new editions of the web site.
Circadence may make improvements and/or changes in the products described in this website at any time and without notice and we make no commitment to update this website in any respect.
Circadence and/or any third-party copyright holders hereby disclaim all warranties and conditions with regard to this information, including all warranties and conditions of merchantability, whether express, implied or statutory, fitness for a particular purpose, title and non-infringement.
Circadence will not be liable under any theory of law, whether in an action of contract, negligence or other tortious action, for any special, indirect, incidental, punitive or consequential damages, including, but not limited to, loss of profits, business interruption, loss of information or data or costs of replacement goods, arising out of the use or inability to use this website or any Circadence product or service offered herein or resulting from use of or reliance on the information presented, even if Circadence may have been advised of the possibility of such damages.
Any software that is made available from the Services (“Software”) is the copyrighted work of Circadence and/or its suppliers. Use of the Software is governed by these Terms.
Any Software that is made available is made so solely for use by end users according to these Terms. Any reproduction or redistribution of the Software not in accordance with these Terms is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the fullest extent possible.
The software is warranted, if at all, only according to these Terms. Except as warranted in these Terms, Circadence hereby disclaims all warranties and conditions with regard to the software, including all warranties and conditions of merchantability, whether express, implied or statutory, fitness for a particular purpose, title and non-infringement.
Any Software which is for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with either Commercial Rights or Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. The manufacturer of such software is Circadence Corporation.
Permission to use any Documents (such as white papers, press releases, datasheets and FAQs) contained on this Website is granted, provided that (1) any copyright notice contained on the Documents appears in all copies and that both the copyright notice and this permission notice appear, and (2) no modifications of any Documents are made. Use for any other purpose is expressly prohibited by law, and may result in civil and criminal penalties. Violators will be prosecuted to the fullest extent possible.
Circadence and/or any third-party copyright holders in the documents make no representations about the suitability of the information contained in the documents for any purpose. All such documents and related graphics are provided “as is” without warranty of any kind.
Throughout this website, there may be links to third-party websites. Circadence does not control the linked sites and is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Circadence is providing these links to you only as a convenience, and does not endorse such sites simply by including links to them.
In addition to the terms defined above and elsewhere in these Terms, the following have the meanings set forth below:
“Agreement” shall mean understanding and acceptance of these Terms and any other documents made a part hereof or incorporated by reference herein, including any written amendments.
“API” means Circadence’s application programming interfaces that enable other software applications to communicate with or call on Software, provided under these Terms.
“Commencement Date” shall mean the date upon which the Project Ares subscription term commences, as specified in the Order.
“Deliverables” has the meaning set forth in one or more Statements of Work that the parties may from time to time enter into pursuant to these Terms.
“Documentation” shall mean the operating manuals, including a description of the functions performed by the Software, user instructions, technical literature and all other related materials, which may from time to time, be supplied to Customer by Circadence to facilitate the use of the Software.
“Error” shall mean any reproducible failure of the Software to conform in all material respects to Documentation; provided however, any failure resulting from (i) Customer’s misuse, improper use, alteration or damage of the Software; (ii) Customer’s failure to implement all Updates issued to Customer; or (ii) combining or merging any Software with any hardware or software not supplied or identified as compatible by Circadence, shall not be considered an Error.
“Fees” shall mean the fees paid by Customer for the right to use the Software during the term identified on the Order.
“Named User” shall mean an individual that has been provided separate access to the Software through a designated seat license as further described in the Order.
“Order” shall mean the customer signed Circadence Quote provided representing a purchase order, or a separate purchase order document provided by the customer in accordance with the Circadence Quote.
“Services” shall mean the subscription to the Software as defined by the Order, the Maintenance Services, and, if applicable, the Hosting Services provided by Circadence.
“Software” shall mean, collectively or individually, the standard software programs described in the Order, in object code format, and including all corrections, modifications and Updates to such software which may be provided to Customer by Circadence pursuant to these Terms.
“Subscription Materials” shall mean the Software and Documentation.
“Update” shall mean a release of the Software made generally available to customers that contains functional enhancements, and/or Error corrections. The content and timing of all Updates shall be determined by Circadence in its sole discretion.
“User” shall mean an individual authorized by Customer to use the Software as either a Named User or Variable User subscription.
“Variable User” shall mean an individual that has been provided access to the Software through Customer’s license or usage base subscription as further described in the Quote.
(a) Subject to these Terms, and subject to receipt of all applicable Fees by Circadence, Circadence grants to Customer a non-transferable, non-sublicensable, non-exclusive license to access and use the subscription to the Software via the Hosting Services (as applicable), and to use the Documentation (whether in written or electronic form) in connection therewith, in each instance (unless otherwise agreed or acknowledged) solely for Customer’s business purposes during the Term.The subscription granted hereunder is limited to the maximum number of Users specified in the Order. .
(b) Except as expressly provided in Section 2(a) above, nothing contained in this Agreement shall be construed as conferring upon Customer, any right or license to the Subscription Materials, or any other materials provided by Circadence under this Agreement, and any copies thereof.Without limiting the generality of the foregoing, except as provided in Section 2(a), no right or license is granted hereunder, and Customer is not permitted, to (i) copy, print, transfer, transmit or display all or any part of the Subscription Materials, (ii) sell, rent, sublicense or otherwise distribute any of the Subscription Materials, (iii) use the Subscription Materials to provide data processing, service bureau, time sharing or other similar services of any kind to any third party, (iv) modify the Software and/or merge all or any part of the Software with or into other computer programs, or (v) compile, reverse compile, disassemble, translate, analyze, reverse engineer or attempt to reverse engineer the Software.All Users will be required to accept Circadence’s End User License Agreement (the “EULA”) as a part of these Terms.
a) Maintenance Services
In addition to Error Correction and the installation of Updates, Circadence will provide help desk support via a web-based issue tracking system that is available twenty-four (24) hours a day, seven (7) days a week. Phone consultation is available during business hours Monday through Friday, 8AM-6PM Eastern Time, excluding the following Holidays:New Year’s Day, Memorial Day, Fourth of July, Labor Day, Veteran’s Day, Thanksgiving and Friday after Thanksgiving, Christmas Day.Circadence will evaluate issues reported by Customer via the web-based issue tracking system and apply the following problem severity levels when determining appropriate resolution procedures.Circadence shall use commercially reasonable efforts to respond to and resolve problems reported by Customer.
b) Hosting Services
- Circadence will install the Software on servers managed by Circadence and make it accessible to Customer through a password-protected, secure web site that will allow the number of Users specified in the Order to access and use the Software.
- Circadence will use commercially reasonable efforts to ensure that the Software is available via the Hosting Services.
- Scheduled Downtime will include the following:Required maintenance that, to the extent reasonably practicable, will be scheduled during weekend hours.Emergency maintenance for which Circadence shall give at least eight (8) hours prior notice by email or phone.Installation of Updates and daily backups.Circadence retains the right to shut down, reboot, modify or fix servers at any time if it is deemed necessary to prevent security breaches or operational failures (including, but not limited to viruses, worms, date bombs, time bombs or denial of service attacks). This may cause loss of access to the system for a period of time, but such protective action shall constitute Scheduled Downtime, and Customer will be notified immediately.Unavailability caused by a Force Majeure Event will be considered Scheduled Downtime.
- In the event that Availability for a specific Software product is, on average, less than 90% than the Availability Target for three consecutive months, Customer may terminate this Agreement and receive a pro-rata refund of prepaid subscription fees paid for the period remaining following such termination; provided however, that if Customer fails to request in writing such termination within thirty (30) days of such event(s), no right to terminate shall remain. Outages for individual Users, which may occur for a variety of reasons including local environmental or configuration issues, shall be excluded from the Availability calculation, provided that the Software is available for other Users. Availability applies only to a Customer’s production instance, not to test or development instances. This is Circadence’s sole liability and Customer’s sole remedy with respect to Circadence’s failure to maintain Availability.
In addition, Circadence may from time to time perform certain additional services on a time and material basis. Such additional services will be performed only upon Customer’s advance written approval and will be invoiced at Circadence’s published service rate.
4. Payment and Taxes
(a) Customer shall pay the Fees in the amounts and upon the terms set forth on the Quote for the subscription granted in Section 2(a) above, and in advance for any renewal Term.
(b) Customer shall be responsible for any taxes due upon payments to Circadence other than taxes based on Circadence’s income.
(d)All invoices are payable in full, without reduction for any offset, withholding or other claims, within 30 days after the date of invoice.For any past due invoices, Circadence may charge interest at the lesser of (i) one percent (1%) per month, or (ii) the greatest amount permitted by applicable law, in each case from the date due until paid.Notwithstanding the foregoing, failure of Customer to pay the undisputed amount of any invoices when due is a material breach of this Agreement.Circadence may, at its election, suspend performance of the Services until payment is made in full and/or terminate this Agreement and Customer’s access and subscription to the Software and Services, in addition to all other remedies available under this Agreement, at law or in equity; provided that, in the case of termination, Circadence provides written notice as required under Section 5(b).
5. Term and Termination
(a) This Agreement shall begin on the Commencement Date and continue for the number of years specified on the Order unless terminated earlier under Section 5(b) (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive one year renewal Terms (each a “Renewal Term,” and collectively, the “Term”), unless either party gives written notice to the other party of termination at least thirty (30) days prior to the end of the then effective Term. Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to Circadence prior to the termination date. By executing this Agreement, Customer is agreeing to pay the full amount of Fees for the Initial Term, and any Renewal Term (as applicable), notwithstanding any early termination by Customer other than a termination by Customer for Circadence’s uncured material breach as permitted herein. The obligation of Customer to pay Fees for the full Term hereof shall apply notwithstanding any potentially conflicting language in any Exhibit or Order hereto.
(b) Circadence or Customer may terminate this Agreement, as appropriate, in whole or in part, by written notice to the other party upon the occurrence of one or more of the following events: (i) Customer’s failure to make timely payment of any undisputed amounts due hereunder within thirty (30) days after written notice of delinquency; (ii) the other party’s material breach of any other term or provision of this Agreement which, if capable of cure, remains uncured for thirty (30) days following written notice by the terminating party; (iii) the other party becomes insolvent or makes any assignment for the benefit of its creditors; (iv) any proceeding is instituted by or against the other party under any bankruptcy or similar laws for the relief of debtors and which is not dismissed within thirty (30) days of being instigated; or (v) the appointment of any trustee or receiver for any of the other party’s assets, except if such receiver requests the continuation of this Agreement.
(c) Upon termination or expiration of this Agreement, Customer shall immediately cease all use of the Software, the other Subscription Materials, and the Deliverables, immediately return to Circadence or destroy the Subscription Materials, the Deliverables, and any and all copies thereof, and certify the same to Circadence in writing within ten (10) days of such termination or expiration. Customer’s obligation to pay all amounts properly due under this Agreement, and the provisions of Sections 1, 5, 6, 7, 8(d), 9, 10, and 11 of this Agreement, shall survive the expiration or termination of this Agreement for any reason.
6. Proprietary Rights
(a) Customer acknowledges that, as between Circadence and Customer, Circadence is the exclusive owner of all right, title and interest, including copyrights and other intellectual property rights, in and to the Subscription Materials, the Deliverables, and all related derivative works, improvements, modifications or enhancements, whether created by Circadence, Customer or any third party (“Derivatives”).If ownership of any of the Subscription Materials, Derivatives, or the Deliverables does not immediately and exclusively vest in Circadence, then, without further consideration, Customer assigns all ownership of the Subscription Materials, Derivatives, and/or the Deliverables to Circadence, immediately upon its creation, automatically and without further consideration or action by any party. At Circadence’s reasonable request, Customer shall perform any acts to transfer, perfect and defend Circadence’s ownership of the Subscription Materials, Derivatives, and/or the Deliverables.
(b) Customer shall continue to own all Customer data, products, materials and intellectual property whether now existing or hereafter created, including but not limited to any products to be used with or in the Subscription Materials or the Deliverables (“Customer Materials”); provided that Customer Materials shall not include Subscription Materials, Deliverables, or derivative works thereto. Customer represents, warrants, and covenants that: (i) it has (and will have) provided any notice and obtained all consents and rights required by applicable law to enable Circadence to lawfully collect, use, disclose or otherwise process Customer Materials or any data made available hereunder by or on behalf of Customer or its Users pursuant to this Agreement; (ii) it has full right and authority to make the Customer Materials or any data made available hereunder by or on behalf of Customer or its Users available to Circadence under this Agreement; and (iii) Circadence’s collection, use, disclosure, or processing of the Customer Materials or any data made available hereunder by or on behalf of Customer or its Users in accordance with this Agreement will not infringe upon or violate any applicable laws or any rights of any third party. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Circadence may invite and allow individuals who separately may constitute registered users authorized by Customer and who may be using any Services or Software in their capacity as a representative of Customer (including a person who may be or may have been a User) (an “End User”) to create a personal profile with Circadence (a “Profile”) that may be accessible through the Services, Software, or through other sites and services offered by Circadence.In connection with an End User’s creation and use of a Profile, the End User may at his or her option (i) provide Circadence with personal and other information relating to such End User, including without limitation: name, address, gender, education, occupation, position, employer, year of birth, email address, password, Internet protocol address, telephone number, and years of experience in the cybersecurity space, and/or (ii) copy to his/her Profile certain data provided to Circadence by, or separately processed by Circadence on behalf of, Customer in connection with Customer’s use of the Services or Circadence’s performance of this Agreement, which data pertains only to the End User associated with the Profile (collectively, the “Profile Data”), and which may or may not be duplicative of data included in the Customer Materials or of data subject to the DPA.As between the parties, Circadence will own and control all Profile Data, including Profile Data that may be duplicative of data included in Customer Materials or of data subject to the DPA.
(c) Circadence reserves the sole and exclusive right to correct Errors.
(d)Circadence reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of the Subscription Materials, the Deliverables, or Circadence’s rights therein or thereto. Customer shall promptly notify Circadence of any infringement or misappropriation of the Subscription Materials, the Deliverables, or Circadence’s rights therein or thereto of which Customer becomes aware.
(e) Circadence shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Subscription Materials any suggestions, enhancement requests, improvements, modifications, feedback, error identifications or other information related to the Subscription Materials or any other products or services, including but not limited to data and information concerning any User’s tactics, techniques and procedures.
(a) For purposes of this Agreement, the term “Proprietary Information” shall mean all technical, business, and other information of either party, which is not in the public domain, disclosed by one party (the “Disclosing Party”) to or obtained by the other party (the “Receiving Party”) in connection with this Agreement, whether prior to, on or after the date of this Agreement, that includes, without limitation, (i) the Subscription Materials, any information related to any programs, whether in source code or object code form, and any related technology, idea, algorithm or information contained therein, including without any limitation any trade secrets related to any of the foregoing, (ii) the Deliverables, (iii) a party’s product plans, designs, costs and prices, (iv) non-published financial information, marketing plans, business opportunities, research, development or know-how, (vi) any information designated by the Disclosing Party as confidential in writing and (vii) the terms and conditions of this Agreement.
(b)Except as expressly permitted by this Agreement, for the duration of this Agreement and for a period of five (5) years from the termination or expiration of this Agreement, the Receiving Party shall, and shall cause its employees to, treat the Proprietary Information of the Disclosing Party as confidential and secret, and not use, disclose or otherwise make available the Proprietary Information or any portion thereof to others. Any trade secret information of a party shall be maintained by the Receiving Party for as long as such information remains a trade secret.
(c)Notwithstanding anything to the contrary in this section, nothing contained herein shall restrict the Receiving Party’s right to use or disclose any Proprietary Information which (i) at the time of disclosure is or becomes generally available to the public through no act of the Receiving Party; (ii) was in the Receiving Party’s possession prior to the time of disclosure as established by Receiving Party in written records, and was not acquired directly or indirectly from the Disclosing Party; or (iii) is independently made available as a matter of right to the Receiving Party by others, provided such others did not acquire such information directly or indirectly from the Disclosing Party.In addition, the Receiving Party may use or disclose Proprietary Information (i) under confidentiality restriction to its financial and legal advisors, its insurance company, its auditors, social and tax authorities if requested, its parent company; or (ii) in application of a Court’s injunction; or (iii) to the extent disclosure is necessary for enforcement of this Agreement.
(d) The Receiving Party shall return to the Disclosing Party or destroy or erase all Proprietary Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) except as otherwise specified herein, upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so. To the extent Proprietary Information includes information relating to an identified or identifiable natural person (“PII”), (unless Circadence has or obtains the independent right to determine the purposes and means of processing of such PII (such as any PII included in the Profile Data)) Circadence shall delete or return all PII to Customer within thirty (30) days of receipt of Customer’s request unless applicable law requires retention of PII. For the avoidance of doubt, unless Customer requests such deletion or return of the PII, Circadence may retain such PII for a reasonable period following the end of the provision of the Services to Customer for the purpose of resuming such Services (including making such PII available to Customer) in the event of future Services renewal.
8. Limited Warranty
(a) Circadence warrants that (i) during the Term of this Agreement the Software will perform substantially in accordance with the Documentation and will be accessible pursuant to the terms of Hosting Services and (ii) the Services shall be performed in a professional and workmanlike manner in accordance with applicable industry standards.
(b) Circadence shall have no obligation under the foregoing warranties if Customer (i) fails to use the Software in accordance with the Documentation; (ii) uses the Software on computers for which the Software was not designed; (iii) modifies or alters the Software in any way; (iv) fails to install and use any fixes, patches, maintenance releases or Updates required by Circadence; or (v) is in arrears with respect to its payment obligations to Circadence. In addition, Circadence shall have no obligation hereunder with respect to any failures suffered by the Software to the extent caused by computer programs or code that are not provided by Circadence (including, without limitation, any computer viruses and other malicious code).Circadence shall be entitled to payment at its then current rates for any time and materials spent attempting to identify or correct any failures for which Circadence has no obligation under this Section 8(b).
(c) Circadence’s sole liability and Customer’s sole remedy with respect to the foregoing warranties shall be for Circadence, at its sole option, to either (i) correct any Error and/or pay the credits as provided in Hosting Services; or (ii) refund to Customer a pro rata amount of any prepaid subscription or license Fees paid to Circadence.
(d) Except as expressly provided in this section 8, Circadence makes no representations or warranties, express, implied or statutory, with respect to the subscription materials, the services, or the deliverables, including, without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement, and, without limiting the foregoing, Circadence hereby disclaims any warranty that the subscription materials or services provided hereunder will meet customer’s requirements or that the software will operate uninterrupted or error free or that all errors can be corrected.
(a)During the Term of this Agreement Circadence agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against the Customer by any third party to the extent it is based on a claim that Customer’s use of the Software or the Deliverables in accordance with this Agreement infringes or violates any copyright and any patent or other third party intellectual property right, and will defend, indemnify and hold Customer harmless from and against any third-party claim or suit, including any losses, damages, or expenses arising from any such third-party claim or suit; provided, however, that this Section 9(a) does not cover, and Circadence shall have no obligation hereunder for, infringement claims arising from (i) Customer’s failure to use the Software in accordance with the Documentation; (ii) Customer’s failure to use the Software in its then current version; (iii) Customer’s failure to use any fixes, patches or Updates required by Circadence; (iv) use of the Subscription Materials in conjunction with third party products; or (v) any modification or alteration of the Subscription Materials by parties other than Circadence.
(b)The obligations of Circadence under this Section 9 to defend, indemnify and hold harmless the Customer shall be subject to the following: (i) Customer shall provide Circadence with prompt notice of the claim or suit giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve Circadence of its obligations under this Section 9 to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (ii) Circadence shall have sole control of the defense and of all negotiations for settlement of such claim or suit; and (iii) Customer shall cooperate with Circadence in the defense or settlement of any such claim or suit, provided that Customer shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Circadence. Subject to clause (ii) above, Customer may participate in the defense of any such claim or suit at its own expense.
(c)If a claim or suit for which Circadence is required to indemnify Customer under Section 9(a) above is or is likely to be brought, Circadence may require Customer to immediately discontinue its use of the Subscription Materials and Customer shall comply with such requirement, and Circadence will, at its sole option, either (i) procure for Customer the right to use the Subscription Materials or affected part thereof as provided in this Agreement; (ii) replace the Subscription Materials or affected part thereof with other non-infringing products or modify the Subscription Materials or affected part thereof to make it not infringing; or (iii) if the remedies set forth in clauses (i) and (ii) are not commercially feasible, as determined by Circadence, terminate this Agreement and the rights granted pursuant to Section 2(a) and refund to Customer a pro rata amount of any prepaid subscription or license Fees hereunder. Circadence will not be liable for any costs or expenses incurred without its prior written authorization.
(d) Customer shall indemnify, defend, and hold Circadence harmless from and against any claim, action, proceeding, suit, or governmental investigation arising out of Customer’s breach of this Agreement.
10. Limitation on Liability
(a) To the maximum extent permitted by applicable law, neither party shall be liable or responsible for any consequential, special, incidental, indirect or similar damages of any nature arising out of or in connection with this agreement, the subscription materials, the services, or the deliverables (including, without limitation, damages for lost profits, revenues, use, data, orders or clients), whether arising in contract or under any other legal theory (including, without limitation, negligence or strict liability) or for any claim made against the other party by any other person, even if such party has been advised of the possibility of such claim.
(b) Except for Circadence’s intellectual property indemnification obligations under section 9, and Circadence’s gross negligence or intentional misconduct, in no event shall Circadence’s liability in connection with this agreement, including without limitation the subscription materials or services, whether caused by failure to deliver, nonperformance, defects, breach of warranty or otherwise, exceed the annual subscription fees paid by customer to Circadence during the twelve month period immediately preceding the event giving rise to such liability.
(a) Assignment. This Agreement, the Subscription Materials, the Deliverables, and the rights and licenses granted hereunder with respect thereto may not be assigned, sublicensed or transferred in any manner by Customer without the prior written consent of Circadence, which may be granted or withheld in Circadence’s sole discretion. Any attempt by Customer to assign, sublicense or transfer any of its rights, or delegate any of its duties or obligations under this Agreement without the prior written consent of Circadence shall be void and shall be a material breach of this Agreement. Notwithstanding the foregoing, this Agreement may be assigned, in whole or in part, by Circadence, to any company which is directly or indirectly controlled by Circadence or which controls Circadence or to a party that acquires substantially all of the assets or capital stock of Circadence.
(b) Waiver. No failure or delay on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall a single or partial exercise by either party of any right or remedy preclude any further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by either party to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or assent to any other breach of or default in the same or any other term or condition hereof.
(c) Entire Agreement. These Terms supersede all prior discussions, understandings and agreements between the parties with respect to the matters contained herein. These Terms including the EULA and the Order contains the sole and entire agreement between the parties with respect to the transactions contemplated herein. In the event of any conflict between any provision of this Agreement and any provision of the EULA, whichever provision is most protective of Circadence and Circadence’s intellectual property shall govern. This Agreement may not be amended or modified except by another agreement in writing executed by the parties hereto.
(d) Governing Law; Jurisdiction. The validity and effect of this Agreement shall be governed by the laws of the State of Colorado, without regard to its rules regarding conflicts of law. Any and all disputes arising from or in connection with this Agreement shall be prosecuted in a court of competent jurisdiction in Boulder or Denver, Colorado.
(e) Binding Effect. This Agreement shall inure to the benefit of and be binding upon Customer and its permitted successors and assigns, and upon Circadence and its successors and assigns.
(f) Headings. Headings as to the contents of particular sections are inserted only for convenience and shall not be construed a part of this Agreement or as a limitation on the scope of any of the terms or provisions of this Agreement.
(g) Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other provision that can be given effect without the invalid provision or application, and to this end the provisions hereof shall be severable.
(h) Marketing. Circadence agrees to obtain Customer’s written authorization prior to publishing any information regarding Customer’s use of the Software, the Services, or the Deliverables. Notwithstanding the above, Circadence may use Customer’s name and logo in general customer lists, in Circadence marketing materials and on its website, provided that any such use is in accordance with Customer’s then-current trademark usage guidelines and that Customer is identified in a manner consistent with the identification of other names and logos in such listings.
(i) Force Majeure. Except with respect to Customer’s obligations under Section 4, neither party shall be responsible for failure or delay in performance hereunder by reason of fire, flood, riot, strikes, labor disputes, acts of terror or sabotage, freight embargoes or transportation delays, any pandemic or epidemic, acts of God or of the public enemy, war or civil disturbances, any future laws, rules, regulations or acts of any government (including any orders, rules or regulations issued by any official or agency or such government) or any other event beyond the reasonable control of such party affecting such party that would delay or prohibit performance hereunder, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, or any cause beyond the reasonable control of such party (a “Force Majeure Event”).Upon the occurrence of a Force Majeure Event, the party whose performance is so affected shall promptly give notice to the other party of the occurrence or circumstance upon which it intends to rely to excuse its performance. During the duration of the Force Majeure Event, the party so affected shall use its reasonable commercial efforts to avoid or remove such Force Majeure Event and shall take reasonable steps to resume its performance under this Agreement with the least possible delay.
(j)Federal Government End User Provisions. Circadence provides the Software, Subscription Materials and Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Circadence to determine if there are acceptable terms for granting such rights, and a mutually acceptable written addendum specifically granting such rights must be included in any applicable contract or agreement.
(k)The parties will comply with the terms of the Data Processing Addendum which is incorporated herein in these Terms its entirety. For the avoidance of doubt, Circadence may process data that is duplicative of Profile Data (including Profile Data that is regulated by the GDPR (as defined in the DPA) and/or the CCPA (as defined in the DPA) on behalf of Customer pursuant to DPA, while separately and simultaneously processing such Profile Data as a controller (as defined in the DPA) and/or a business (as defined in the DPA), in each case to the extent applicable.
12. Data Processing Addendum (DPA)
Defined Terms. In Sections 2 through 6 of this Data Processing Addendum (“DPA”), the following terms have the meanings given in the General Data Protection Regulation (EU) 2016/679 (“GDPR”): “controller”, “personal data”, “processor”, “data subject” and “processing”.
2.Subject Matter, Nature, Purpose and Duration. Sections 1 through 6 of this DPA apply to the processing of personal data that is regulated by the GDPR by Circadence solely on behalf of Customer for the purpose of providing the Services, excluding Profile Data (“EU Personal Data”). As between the parties, (i) Customer is a controller and Circadence is a processor on behalf of Customer with regard to EU Personal Data or (ii) Customer is a processor and Circadence is a subprocessor on behalf of Customer with regard to EU Personal Data. The subject matter of EU Personal Data processing, including the purpose and nature of the processing operations carried out by Circadence on behalf of Customer, the type of EU Personal Data subject to this DPA and the categories of data subjects to whom such EU Personal Data relates, as well as Customer’s data processing instructions for Circadence, are set forth on Attachment A to this DPA and as otherwise provided in reasonable written instructions by Customer to Circadence from time to time. This DPA shall remain in effect, and the duration of the processing under this DPA shall continue, as long as Circadence carries out EU Personal Data processing operations on behalf of Customer or until the termination of the Agreement (and all EU Personal Data has been returned or deleted in accordance with Section 3(g)).
3.Processing Covenants. In processing EU Personal Data hereunder, Circadence shall:
a. process EU Personal Data only on documented instructions from Customer, unless otherwise required to do so by applicable law, in which case Circadence will inform Customer of that legal requirement before processing, unless applicable law prohibits Circadence from informing Customer. For the avoidance of doubt, this DPA shall constitute Customer’s documented instructions to Circadence to process EU Personal Data in connection with Circadence’s provision of the Services to Customer;
b. use commercially reasonable efforts intended to ensure that persons authorized to process EU Personal Data hereunder have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality or are subject to ethical rules of responsibility that include confidentiality;
c. taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement commercially reasonable technical and organizational measures intended to meet the security requirements described in Article 32 of the GDPR;
d. taking into account the nature of the processing, use commercially reasonable efforts to assist Customer, at Customer’s expense, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subjects’ rights with respect to their EU Personal Data under the GDPR and any applicable national implementing legislation, regulations and secondary legislation relating to the processing of EU Personal Data (the “Data Protection Laws”);
e. taking into account the nature of processing and the information available to Circadence, use commercially reasonable efforts to assist Customer, at Customer’s expense, in ensuring compliance with Customer’s obligations described in Articles 32 through 36 of the GDPR;
f. notify Customer promptly if Circadence becomes actually aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, EU Personal Data (an “EU Personal Data Incident”), provided that the provision of such notice by Circadence shall not be construed as an acknowledgement of fault or liability with respect to any such EU Personal Data Incident;
g.at the choice of Customer, and upon Customer’s written request, delete or return all EU Personal Data to Customer within thirty (30) days after the end of the provision of Services to Customer and delete existing copies unless applicable law requires retention of EU Personal Data; and
h. make available upon Customer’s reasonable request information reasonably necessary to demonstrate material compliance with the obligations laid down in this DPA and allow for and contribute to audits (each, an “Audit”), at Customer’s expense, including inspections of processing facilities under Circadence’s control, conducted by Customer or another auditor chosen by Customer (an “Auditor”), during normal business hours, no more frequently than once during any twelve (12) month period, and upon reasonable prior notice, provided that no Auditor shall be a competitor of Circadence, and provided further that in no event shall Customer have access to the information of any other client of Circadence and the disclosures made pursuant to this Section 3(h) (“Audit Information”) shall be held in confidence as Circadence’s confidential information and subject to any confidentiality obligations in the Agreement, including Section 7 thereof, and provided further that no Audit shall be undertaken unless or until Customer has requested, and Circadence has provided, documentation pursuant to this Section 3(h) and Customer reasonably determines that an Audit remains necessary to demonstrate material compliance with the obligations laid down in this DPA. Without limiting the generality of any provision in the Agreement, Customer shall employ the same degree of care to safeguard Audit Information that it uses to protect its own confidential and proprietary information and in any event, not less than a reasonable degree of care under the circumstances, and Customer shall be liable for any improper disclosure or use of Audit Information by Customer or its agents.
4.Subprocessors.Customer hereby grants Circadence general authorization to engage another processor to process EU Personal Data on behalf of Circadence (each, a “subprocessor”)to assist Circadence in processing EU Personal Data as set out in this DPA. Circadence shall enter into contractual arrangements with such subprocessors requiring the same level of data protection compliance and information security as that provided for herein. Customer hereby consents to the processing of EU Personal Data by, and the disclosure and transfer of EU Personal Data to, the subprocessors listed on Attachment B to this DPA. Circadence shall inform Customer of any intended changes concerning the addition or replacement of subprocessors at least ten (10) calendar days before the new subprocessor processes EU Personal Data. Customer may object to such changes in writing within five (5) calendar days of such notice, provided that such objection is based on reasonable grounds relating to data protection (an “Objection”). In the event of an Objection, the parties will discuss such concerns in good faith with the intention of achieving a resolution. If the parties are not able to achieve a resolution as described in the previous sentence, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience, on the condition that Customer provides written notice to Circadence within five (5) calendar days of being informed of the engagement of the subprocessor. Customer shall not be entitled to any refund of fees paid prior to the date of any termination pursuant to this Section 4.
5.Customer Obligations. Customer represents, warrants, and covenants that (i) it shall comply with its obligations as a controller under the GDPR in respect of its processing of EU Personal Data and any processing instructions it issues to Circadence as referred to in Section 3(a); (ii) it has provided notice and obtained all consents and rights required by the Data Protection Laws to transfer the EU Personal Data outside the European Economic Area or United Kingdom and for Circadence to process EU Personal Data pursuant to the Agreement and this DPA; and (iii) the processing of EU Personal Data by Circadence upon the documented instructions of Customer under Section 3(a) shall have a lawful basis of processing pursuant to Article 6 of the GDPR. If Customer is a processor, Customer represents and warrants to Circadence that Customer’s instructions and actions with respect to EU Personal Data, including its appointment of Circadence as another processor, have been duly authorized by the relevant controller. Customer shall indemnify, defend and hold Circadence harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Customer’s violation of this Section 5. Notwithstanding anything to the contrary in the Agreement, Customer’s indemnification obligations under this Section 5 shall not be subject to any limitations of liability set forth in the Agreement.
6.Data Transfer. Customer hereby consents to the transfer of EU Personal Data to, and the processing of EU Personal Data in, the United States of America and/or any other jurisdiction in which Circadence or its subprocessors have operations. The parties hereby enter into the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2010/87/EU, attached hereto as Attachment C (the “SCCs”) and made a part of this DPA in their entirety.
8.CCPA Provisions. This Section 8 shall apply from and after the CCPA Effective Date (as defined below) and shall not apply before such CCPA Effective Date. As between the parties, Circadence is a service provider to Customer with respect to Consumer Information (as defined below).
a. In this Section 8:
i. “CCPA” means the California Consumer Privacy Act of 2018.
ii. “CCPA Effective Date” means January 1, 2020 or the date the CCPA becomes enforceable, whichever is later.
iii. “Consumer Information” means any personal information that is processed by Circadence solely on behalf of the Customer, but excludes Profile Data.
iv. “Medical Information” means any Consumer Information, in electronic or physical form, regarding a California resident’s medical history or medical treatment or diagnosis by a health care professional.
v. “Health Insurance Information” means a California resident’s insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the California resident, or any information in a California resident’s application and claims history, including any appeals records.
vi. “Sensitive Consumer Information” means any Consumer Information that constitutes either of the following: (A) California resident’s first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (I) social security number; (II) driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific California resident; (III) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an California resident’s financial account; (IV) Medical Information; (V) Health Insurance Information; or (VI) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific California resident (except that unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes); or (B) a username or email address in combination with a password or security question and answer that would permit access to an online account. Sensitive Consumer Information does not include publicly available Consumer Information that is lawfully made available to the general public from federal, state, or local government records.
vii. The following terms have the meanings given in the CCPA: “personal information”, “processing”, “service provider”, “sell”, “selling”, “sale” and “sold”.
b. From and after the CCPA Effective Date, except as otherwise required by applicable law, Circadence shall:
i. process the Consumer Information for the business purpose of providing the Services or as otherwise permitted by the CCPA;
ii. implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Sensitive Consumer Information (if any) intended to protect such Sensitive Consumer Information from unauthorized access, destruction, use, modification, or disclosure;
iii. not retain, use or disclose Consumer Informationfor any purpose outside the scope of the business relationship of the parties and other than for the specific purpose of performing the Services (nor retain, use, or disclose the Consumer Information for a commercial purpose other than providing the Services) or as otherwise permitted by the CCPA as applicable to service providers;
iv. not collect or use Consumer Information except as reasonably necessary to provide the Services;
v. not sell the Consumer Information;
vi. to the extent necessary, use commercially reasonable efforts to assist Customer, at Customer’s expense, in Customer’s fulfilment of Customer’s obligation to respond to California residents’ requests to exercise rights with respect to their Consumer Information under the CCPA; and
vii. use commercially reasonable efforts to assist Customer, at Customer’s expense, to the extent necessary to support Customer’s compliance with Customer’s obligations under the CCPA.
c. Circadence understands the restrictions provided in Sections 8(b)(iii) and 8(b)(v) and will comply with them.
d. Customer represents, warrants and covenants that (i) it shall comply with its obligations under the CCPA in respect of its processing of Consumer Information and any processing instructions it issues to Circadence; and (ii) it has provided notice (including pursuant to Section 1798.135 of the CCPA) and obtained all consents and rights required by the CCPA for Circadence to process Consumer Information pursuant to the Agreement and this DPA. Customer shall indemnify, defend and hold Circadence harmless against any claims, actions, proceedings, expenses, damages and liabilities (including without limitation any governmental investigations, complaints and actions) and reasonable attorneys’ fees arising out of Customer’s violation of this Section 8(d). Notwithstanding anything to the contrary in the Agreement, Customer’s indemnification obligations under this Section 8(d) shall not be subject to any limitations of liability set forth in the Agreement.
e. Nothing in this DPA shall prevent Circadence from engaging its own service providers in the processing of Consumer Information, provided that Circadence shall enter into contractual arrangements with such service providers requiring a substantially similar level of data protection compliance and information security as that provided in this Section 8 with respect to Consumer Information.
b) Attachment A
Subject Matter, Nature, Purpose and Duration of the Processing
1- Type of EU Personal Data:
EU Personal Data of representatives and users of Customer and students of Customer (if Customer is an educational institution), including without limitation: name, username, address, gender, education, occupation, position, employer, year of birth, email address, password, years of experience in the cybersecurity space, Internet protocol address, telephone number, and any information input into the Services’ chat functionality by any representatives or users of Customer or students of Customer (if Customer is an educational institution).
2- Categories of Data Subject:
Representatives and users of Customer; students of Customer (if Customer is an educational institution); and any individuals to whom any information input into the Services’ chat functionality by any representatives or users of Customer or students of Customer (if Customer is an educational institution) relates.
3- Subject Matter and Purposes for which EU Personal Data is Processed:
To provide the Services to Customer by Circadence in accordance with the Agreement.
4- Nature of the Processing:
The EU Personal Data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing Services by Circadence to Customer in accordance with the terms of the Agreement.
c) Attachment B
2.ScaleMatrix Holdings, Inc.
3.Microsoft Corporation (Azure)
4.Concentric Sky, Inc. (Badgr)
d) Attachment C
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Customer (the ‘data exporter’)
Circadence Corporation (the ‘data importer’)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a)‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b)‘the data exporter’ means the controller who transfers the personal data;
(c)‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d)‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e)‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f)‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1.The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2.The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub- processor shall be limited to its own processing operations under the Clauses.
4.The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a)that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b)that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c)that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d)that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e)that it will ensure compliance with the security measures;
(f)that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g)to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h)to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i)that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub- processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j)that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a)to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b)that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c)that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d)that it will promptly notify the data exporter about:
any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
any accidental or unauthorised access; and
any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e)to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f)at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g)to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h)that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i)that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j)to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
1.The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2.If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3.If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
4.The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a)to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b)to refer the dispute to the courts in the Member State in which the data exporter is established.
5.The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
6.The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
7.The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
9.The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses . Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
10.The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
11.The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
12.The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
1.The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
to the Standard Contractual Clauses (Attachment C)
This Appendix forms part of the Clauses and must be completed and signed by the parties. By signing the signature page to the Agreement, the parties will be deemed to have signed this Appendix 1.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
The data exporter is (please specify briefly your activities relevant to the transfer):
Service recipient of data importer
The data importer is (please specify briefly activities relevant to the transfer):
Service provider for data exporter
The personal data transferred concern the following categories of data subjects (please specify):
Representatives and users of data exporter; students of data exporter (if data exporter is an educational institution); and any individuals to whom any information input into the Services’ chat functionality by any representatives or users of data exporter or students of data exporter (if data exporter is an educational institution) relates.
Categories of data
The personal data transferred concern the following categories of data (please specify):
Personal data of representatives and users of data exporter and students of data exporter (if data exporter is an educational institution), including without limitation: name, username, address, gender, education, occupation, position, employer, year of birth, email address, password, years of experience in the cybersecurity space, Internet protocol address, telephone number, and any information input into the Services’ chat functionality by any representatives or users of data exporter or students of data exporter (if data exporter is an educational institution).
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
None presently contemplated by this arrangement.
The personal data transferred will be subject to the following basic processing activities (please specify):
The personal data will be subject to basic processing, including but not limited to collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction for the purpose of providing services to data exporter in accordance with the terms of the Agreement.
to the Standard Contractual Clauses (Attachment C)
This Appendix forms part of the Clauses and must be completed and signed by the parties. By signing the signature page to the Agreement, the parties will be deemed to have signed this Appendix 2.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the data importer has implemented appropriate technical and organizational measures intended to ensure a level of security appropriate to the risk.
Last Revised 4/23/20
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Content” means all audio, visual, audio-visual, textual or other perceivable content of the Services. “Credentials” means a User ID and password created in order to access any of the Services.
“Data” means the data constituting or communicated by or through the Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, but does not include code provided by Circadence and used or transmitted in an environment provided by Circadence as part of the Services.
“Mission Data” means information regarding your interaction with the Circadence Services during the performance of missions or response to scenarios included in the Services.
“Registration Data” means data collected by Us in connection with your registration to use the Services and/or in order to provide Credentials. “Services” has the meaning specified above, and includes, without limitation, Web-based applications, platforms and other software or services provided by Us known as Project Ares.
“Third-Party Applications” means software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Third-Party Software” means contain software licensed to Circadence by third parties and provided with or through the Services or Licensed Applications.
“Third-Party Websites” means websites or web pages provided by persons or entities other than Circadence or its Affiliates, whether or not Circadence has any association or contractual relationship with the provider.
“Users” means individuals who are authorized to use the Services and who have been supplied Credentials by You (or by Us at Your request).
“User Content or Data” means content or data provide by You though or pursuant to Your use of the Services.
“We” or “Us” means Circadence and licensees authorized by Circadence to provide or participate in the provision of the Services, and “Our” refers to anything belonging or pertaining to Circadence.
“You” means, as applicable, you and Users authorized by you or provided with Credentials at your request, and “Your” means belonging or pertaining to You.
“Your Data” means all electronic data or information submitted by You to Us.
2. License Agreement
a. Subject to these Terms, You are hereby granted a personal, non-transferable, non-sublicensable, limited, non-exclusive license to use a single copy of the Licensed Application in executable format, without modification, on a single computer or device.
b. Subject to the these Terms, You are hereby granted a personal, non sublicensable, limited, non-exclusive license to use any user guide, technical specifications, help information and other documentation and material, whether in printed and/or electronic format(s), made available in connection with the license of the Licensed Application (the “Documentation”) internally, and solely in connection with the permitted use of the Licensed Application; and
c. The Licensed Application and Documentation is licensed, not sold. The Licensed Application and Documentation shall be deemed accepted on use. A license for the Licensed Application may not be shared, installed or used concurrently on different computers. The Licensed Application is licensed as a single product and You may not separate or use its component parts beyond the authorized number of copies.
a. Except for the limited rights and licenses expressly granted hereunder, no other license is granted and no other use of the Licensed Application or Documentation is permitted. Circadence and its suppliers and licensors retain all right, title and interest in and to the Licensed Application and Documentation (including all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein) and all copies thereof, and any rights not expressly granted to You herein are reserved by Circadence and its suppliers and licensors. You agree not to take any action which may jeopardize, limit or interfere in any manner with, or which is inconsistent with such ownership.
b. Except as provided hereunder, You may not copy, distribute (including over a network), rent, lease or share, loan, encumber, modify or create derivative works, adapt, translate, perform, display, sublicense or transfer the Licensed Application or Documentation.
c. You may not alter, merge, modify, adapt, translate or localize the Licensed Application, or reverse engineer, disassemble, decompile or otherwise reduce to non-binary form the Licensed Application, except to the extent that this restriction is expressly prohibited by applicable law. Any unauthorized modifications, derivative works, translations or any other intellectual property, created of the Licensed Application, or components thereof, or enhancements of the Licensed Application, shall belong exclusively to Circadence or its suppliers or licensors, as applicable, and You hereby assign and shall assign any and all rights in them (including without limitation moral rights) to Circadence or its suppliers or licensors, as applicable. You hereby agree to promptly enter into any further documentation required by Circadence or its suppliers or licensors, as applicable in their sole discretion to legally or commercially effect such assignment. You hereby expressly waive any rights You may obtain inconsistent with the foregoing through application of the law of any other country or otherwise. If You breach this restriction, You may be subject to prosecution and damages.
d. You may not (and shall not permit any third party to) modify, obscure or remove any trademark, patent notice or other proprietary or legal notice, legend, symbol, label or marking contained in or on the Licensed Application or Documentation.
You agree that the Licensed Application and Documentation and all copies thereof belong to Circadence, and that You neither own nor hereby acquire any claim or right of ownership to the Licensed Application and Documentation or to any related patents, copyrights, trademarks or other intellectual property. Circadence retains all right, title and interest in and to the Documentation and all copies and the Licensed Application at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. All content accessed through the Licensed Application is the property of the applicable content owner and may be protected by applicable copyright law. This license gives You no rights to such content.
You acknowledge and consent that the Licensed Application may contain license management or other measures that detect or prevent unauthorized use of, or restrict or disable unlicensed copies of, the Licensed Application. You agree that Circadence may use those measures and You agree to follow any requirements regarding them.
3. Use the Services
The End User Terms referenced herein apply to any and all user accounts, whether said account is newly created, will be created in the future, or has already been created. Therefore, please read the End User Terms fully, carefully and completely.
a. You are: (1) responsible for all obligations under this Agreement arising in connection with Your use of the Services; (2) liable for any act or omission which, if performed or omitted by You, would be a breach of this Agreement; (3) responsible to use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Us promptly within five (5) business days of any such unauthorized access or use; (4) solely responsible for the accuracy, quality, integrity and legality of Your Data and the means by which You acquired Your Data; and, (5) responsible for accessing and using the Services in accordance with this Agreement, User Materials and applicable laws.
b. You shall not: (1) make the Services available to anyone other than Users, (2) sell, resell, rent or lease the Services, (3) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (4) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (5) attempt to gain or gain unauthorized access to the Services or their related systems or networks, or (6) use or attempt to use the Services in any way that causes, is intended to cause, or is likely to cause any harm to Circadence, to any other user of the Services, or to any third party.
c. You represent, warrant and covenant that Your access and use of Services, shall be in compliance with applicable laws, the End User Terms, and the Agreement as a whole.
The Services may be subject to other limitations as We may specify from time to time.
a. In order to access some of the Services You will be required to create Credentials that can be obtained by completing our online registration form and providing Registration Data, and to maintain and update Your Registration Data as required. By registering, You agree that all Registration Data You provide is true and accurate; that You will maintain and update this Registration Data as required in order to keep it current, complete, and accurate; and that Your registration for the Services does not violate any applicable law or regulation in Your jurisdiction. If You create an account or user profile, You will be asked to choose Credentials. Your Credentials may not be shared or used by any other individual. Unless otherwise agreed to by Circadence in writing, the Services are only for Your personal use.
b. Some features and functions of the Services are designed to operate solely in the training platform for which it was created and are not intended to be applied and used outside the Project Ares environment. Circadence may, in its sole discretion, refuse to offer the Services to any person or entity, and may change its eligibility criteria at any time. You may not use the Services for commercial purposes or in any way that is unlawful, or harms Circadence or any other person, government or entity.
c. To use certain aspects of the Services You may need to grant Circadence permission to access Your account information for other third-party software or services. Additionally, as the Services may allow You to register or interact with other websites that Circadence has an interest in, association with, or has entered into a contractual relationship with, You may need to grant Circadence permission to access such Affiliate account information.
YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR CREDENTIALS AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to notify Circadence immediately of any unauthorized use of Your Credentials or Affiliate account or any other breach of Circadence’s or an Affiliate’s security and to provide properly documented evidence as requested by Circadence. Unless otherwise agreed to in writing by Circadence, You may not use anyone else’s Credentials at any time and You may not allow anyone else to use Your Credentials at any time. You agree that Circadence will not be liable for any loss You may incur as a result of someone else using Your Circadence Credentials either with or without Your knowledge. You further agree that You will be liable for any and all losses incurred by Circadence, or another party, due to someone else using Your Credentials, password, account, and/or Affiliate account or other related information.
YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN YOUR ACCOUNT OR USER ID AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL RIGHTS IN AND TO YOUR ACCOUNT OR USER ID ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF CIRCADENCE. Therefore, You may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest Your rights, responsibilities or obligations under the End User Terms, either in whole or in part, without the prior written consent of Circadence. Any attempt to do so shall be void and of no effect.
Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications, software implementation or customization services, or other consulting services, is solely between You and the applicable third party. We do not warrant or support third-party products or services.
Any exchange of data between You and any third party is solely between You and the applicable third party. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. We do not warrant or support third-party products or services. The Services may link You to Third-Party Websites or otherwise include references to information, documents, software, materials and/or services provided by other parties. These other websites and third parties are not under Circadence’s control, and Users acknowledge that Circadence is not responsible for the accuracy, security, copyright compliance, legality, decency, or any other aspect of the content of such websites, nor is Circadence responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply Our endorsement of, or association with, the website or third party, or any warranty of any kind, either expressed or implied. You agree that Circadence has no responsibility for Third-Party Applications or Third-Party Websites.
Circadence has incorporated elements of programs or code from third-party suppliers. The terms of these license agreements for Third-Party Software shall govern Your use of the Third-Party Software. It is Your responsibility to review, understand and abide by any and all Third-Party Software agreements, and Circadence has no obligation to You with respect to Your use of such software.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest, including copyrights, in and to the Services and all derivative works, changes, improvements or modifications to the Services, including all related intellectual property rights. The Service, Content and Data are protected by United States law, as well as the laws of various international jurisdictions, including, but not limited to copyright laws, trademark law, patent law, trade secret law and various governmental treaties. By accepting these End User Terms, You acknowledge and agree that all materials presented to You through the Services are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, as applicable, and are the sole property of Circadence and/or its Affiliates. You are only permitted to use the materials available through the Services as expressly authorized by Circadence. Except for a single copy made for personal use only, You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any Content, Data or Services in any form or by any means without prior written permission from Circadence, and You are solely responsible for obtaining permission in advance. Neither Circadence nor our Affiliates warrant or represent that Your use of the Content, Data or Services will not infringe the rights of third parties. You acknowledge and agree that You will not upload or otherwise transmit in or through the Services any material that is subject to any third-party rights unless any and all holders of such rights have expressly authorized such activity.
You shall not (a) permit any third party to access the Services except as permitted herein, (b) create derivate works based on the Services, (c) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (d) reverse engineer the Services, or (e) access the Services in order to (1) build a competitive product or service, or (2) copy any features, functions or graphics of the Services.
You acknowledge that Circadence may solicit the submission of User Content and Data from You and may reach out to you for feedback on the Services. To the extent You submit any User Content or Data or provide such feedback, You acknowledge and agree that You automatically grant (and represent and warrant that You have the right to grant) the following rights to Circadence: a. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to Circadence to use, reproduce, distribute, remove, and analyze any of Your User Content and Data as Circadence may deem necessary or desirable for any purpose in connection with the operation of the Service, including but not limited to for purposes of creating, providing, managing, debugging, testing and/or providing support for the Service, and b. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to Circadence to copy, modify, and reproduce Your Content and Data for marketing, promotional and/or other purposes in connection with the Services in any media, whether presently known or unknown, and c. a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to each User and/or the Services to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Content and Data, and d. except as set forth herein, the perpetual and irrevocable right to Circadence to delete any or all of Your Content or Data from the Service, whether intentionally or unintentionally, for any reason or no reason, without any liability of any kind to You or to any other party.
We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, improvements, modifications, feedback, error identifications or other information related to the Services or any other products or services, including but not limited to data and information concerning User’s tactics, techniques and procedures.
Circadence may collect, maintain and use at its sole discretion any and all system commands, log commands, audit records, communications made in chat rooms, or other information related to Your use of and/or interaction with the Services. In particular and without limitation, Circadence may collect Mission Data. You understand and agree that Circadence may, as it deems necessary or desirable, use Mission Data for purposes of operation or enhancement of the Service. In addition, You understand and agree that Circadence may, as it deems necessary or desirable, share Mission Data in anonymized form with its Affiliates or with third parties for purposes of operation or enhancement of the Service. As used herein, “anonymized” means devoid of information identifying any User.
Circadence has no liability to you or any third party arising from or relating to user content or data submitted by you on or through the services. You are solely and exclusively responsible for any claims arising from your submission of user content or data on or through the services.
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for granting such rights, and a mutually acceptable written addendum specifically granting such rights must be included in any applicable contract or agreement.
Although the Services may be accessible worldwide, We make no representation that materials on the Services are appropriate or available for use in all locations outside the United States. Accessing the materials from territories where their contents are illegal is prohibited. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, to the extent local laws are applicable. Any offer for any product, Service, and/or information made in connection with the Services is void where prohibited. You agree not to use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. Without limiting the foregoing, the Services may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries, which include Iran, North Korea, Sudan, and Syria, or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals and Blocked Person List or the U.S. Department of Commerce’s Denied Persons List or Entity List. By accessing and using the Services You represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list.
You represent and warrant that (i) You have the legal power to enter into this Agreement, (ii) You will not transmit to Us any Malicious Code or any content or materials that violate or infringe any third-party’s intellectual property or proprietary rights and (iii) You will not use the Services for any illegal purpose or in violation of any applicable law.
Except as expressly provided herein, we make no representations or warranties of any kind, whether express, implied, statutory or otherwise, and we specifically disclaim all implied warranties, including any warranties of merchantability or fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. You assume total responsibility for the selection of the services to achieve your intended results and for your use of the results obtained from the services.
You shall defend Us against any claim, loss, liability, demand, suit or proceeding (“Claim”) made or brought against Us relating to or arising out of this Agreement or Your use of the Services. You agree to defend, indemnify and hold harmless Circadence, its members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees, that may, at any time, arise out of or relate to Your authorized, unauthorized, lawful or unlawful use of the Services, including but not limited to Your breach of this Agreement, Your use of the Services or alleging that Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law, Your inability to access the Services and Your reliance on any errors or omissions on the Services, violation of applicable laws (including, without limitation, Data Privacy and Security Laws) and violation of any third party rights.
In no event will Circadence (including its subsidiaries, its parent and subsidiaries of its parent, licensors, and the employees, officers, directors and agents thereof) be liable for any consequential, indirect, special, incidental, exemplary or punitive damages under this agreement or in connection with any services provided by Circadence hereunder, including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss arising out of the use or inability to use the services or data, even if Circadence has been advised of the possibility of such damages and even if available remedies are found to have failed of their essential purpose. The total liability, if any, of Circadence (including its subsidiaries, its parent and subsidiaries of its parent and licensors, and the employees, officers, directors and agents thereof) in the aggregate over the term of this agreement for all claims, causes of action or liability whether sounding in contract, tort or otherwise arising under or in any way related to this agreement and/or the services provided hereunder (collectively, “claims”), shall be limited to the lesser of: (a) your direct damages, actually incurred, or (b) the total fees paid by you to Circadence in the most recent six (6) month period. Notwithstanding the foregoing, Circadence’s sole obligation in the event of an error by Circadence in the performance of any services under this agreement shall be limited to reprocessing applicable data or reperforming the services. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Circadence shall be limited to the fullest extent permitted by law. Residents of California are entitled to the following specific consumer rights information: You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
This Agreement commences on the date You accept it and continues until the applicable User subscriptions granted in accordance with this Agreement have expired or been terminated. CIRCADENCE RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT, SUSPEND, OR CHANGE ANY SERVICE OR FEATURE OF THE SERVICES AT ANY TIME, FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU.
Circadence may destroy any of Your User Content or Data still residing on Circadence’s systems after the termination of this Agreement without further notice.
The following provisions of these End User Terms shall survive termination or expiration: Ownership; Proprietary Rights; Disclaimer; Indemnification and Limitation of Liability; Governing Law and Jurisdiction; Notice; and General Provisions.
Each party agrees that this Agreement and Your use of the Services shall be governed by the laws of the State of Colorado, without regard to choice or conflicts of law rules, and to the exclusive jurisdiction and venue in the state and federal courts in the State of Colorado.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by binding arbitration administered by the American Arbitration Association in accordance with the then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The Arbitration shall be heard by a single arbitrator with at least five (5) years’ experience in digital media or cyber law and shall be completed within thirty (30) days from the appointment of the Arbitrator. The arbitrator(s) shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator(s) between the parties in such amount as the arbitrator(s) determine is appropriate. Each party shall bear its own costs and expenses in connection with this arbitration proceeding, including witness costs and expenses, provided that the prevailing party in the arbitration shall be entitled to an award and recovery of attorneys’ fees incurred in the arbitration. To the extent permitted by law, arbitration shall take place in the State of Colorado, unless the parties mutually agree to another location. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts of Colorado. By entering into this agreement, which contains this arbitration provision, the parties are waiving the right to a jury trial as to any claims each party may claim to have against the other.
All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The parties agree that all correspondence relating to this Agreement shall be written in the English language. Notices to You shall be addressed to the relevant billing contact designated by You and additionally sent to any email address on file. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section. CONTACT. You may contact Circadence at the following address: Circadence Corporation 1900 9th Street, Suite 300 Boulder, Colorado 80302 Email: [email protected] You may also telephone us at: (303) 413-8800
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) You represent that You are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not access or use Services in violation of any U.S. export embargo, prohibition or restriction.
The parties are independent from one another. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
There are no third-party beneficiaries to this Agreement.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
In addition to any excuse provided by applicable law, Circadence shall be excused from liability for non-delivery or delay in delivery of products and services available through the Services arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, terrorism, fire, denial of services or other significant cyber attack, internet outages, pandemic, epicdemic, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
Circadence reserves the right, in its sole discretion, to change, modify, update, discontinue, remove, revise, delete or otherwise change any provision of this Agreement, in whole or in part, at any time. When You access or use the Services or the Licensed Application, You will be notified that this Agreement has been revised, You will be provided with a link to the revised Agreement, and You will be asked to agree to the terms of the revised Agreement. If You access or use the Services or the Licensed Application in any way after this Agreement has been changed, You will be deemed to have read, understood and unconditionally consented to and agreed to such changes.
This Agreement, including the End User Terms and all exhibits, schedules and addenda hereto, constitutes the entire agreement between the parties related to the subject matter herein. It supersedes and replaces all prior representations, negotiations, proposed agreements, and agreements, written or oral. The parties, and each of them, acknowledge that no other party to this Agreement, nor any agent or representative of any such party, has made any promise, representation or warranty, express or implied, not contained in this Agreement, in order to induce them enter into this Agreement. The parties, and each of them, further represent and acknowledge that they are not executing this Agreement in reliance on any promise, representation or warranty not contained in this Agreement.
Copyright © 2010-2023 Circadence Corporation. All rights reserved.
All content, including the compilation of all content, on this website is the exclusive property of Circadence or its content suppliers and is protected by U.S. and international copyright laws. You are authorized to view, copy, print and distribute content found on this website provided that you use the content for informational purposes only, you do not use the content for any commercial purpose, and you retain this copyright notice.
If you believe that your copyright in any material has been infringed by Circadence or by a third party who has made such material available for delivery from this website, please provide the following information to the person designated below: a description of the copyrighted work together with a description of where the material is located (e.g., a URL or the like) or otherwise can be found; your contact information (address, telephone number and e-mail) and your electronic or physical signature; a statement that you have a good faith belief that material identified is not authorized by the copyright owner or its agent; and a further statement by you under penalty of perjury that the information provided is accurate and that you are authorized to make the complaint on the copyright owner’s behalf.
If you believe your copyright material is being used on this website without permission, please notify the designated copyright agent, Peter-Christian Olivo, at Circadence Corporation, 1900 9th Street, Suite 300, Boulder, Colorado 80302, 303-413-8837 or email [email protected]
Portions, features and/or functionality of Circadence’s products are protected under one or more of the following United States Patent Numbers:
6,390,922, 6,179,713, 6,050,898, 5,964,660, 7,043,563, 7,120,662, 7,155,539, 7,020,783, 7,111,006, 7,127,518, 7,143,195, 6,990,531, 7,450,495, 7,330,435, 7,257,081, 7,120,120, 6,836,465, 7,525,920, 7,975,066, 8,065,399, 8,024,481, 2,730,021, 7,962,654, 8,195,823, 8,510,468, 8,218,447, 8,463,935, 8,417,770, 8,386,641, 8,977,711, 8,898,340, 8,977,712, 9,148,293, 9,380,129, 8,996,705, 9,432,296, 9,185,185, 9,578,124, 10,056,005, 9,436,542, 9,723,105, 9,923,987, 10,033,840, 10,238,948, 10,154,115, 10,205,795, 10,329,410, 10,515,564, 10,518,162, 10,516,751.
and the following foreign patent numbers: EP0284436, EP02786767, EP 02789833, AU2016327973
as well as Patents Pending in the United States and other countries.
Circadence, the Circadence logo, , Project Ares, Project Ares logo, Trivia Loot, CyberBridge, , NexAgent and RegExile are trademarks or registered trademarks of Circadence. All other trademarks mentioned in this website are the property of their respective owners. The trademarks and logos displayed on this website may not be used without the prior written consent of Circadence or their respective owners.