End User Subscription Agreement

Last updated: February 25, 2021

This End User Subscription Agreement (“Agreement”) is between BastionZero, Inc. doing business as BastionZero (the “Company", "We", "Us" or "Our") and visitors, users and others (“You”, “Your” or the “Customer”) who access or use the Service.  

Your purchase of, access to and use of the Service is conditioned on Your acceptance of and compliance with the terms of this Agreement.  By accessing or using the Service, You agree to be bound by these Terms and Conditions. If You disagree with and do not accept any part of these Terms and Conditions, You may not access the Service.

This Agreement may be periodically updated and the current version will be posted at www.bastionzero.com/termsofservice.html. Your continued use of the Service after a revised Agreement has been posted constitutes your acceptance of its terms.

1.0 Definitions

‍The following terms have the meanings set forth below.

1.1

‍Affiliate means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.

1.2

‍Feedback means feedback, innovations or suggestions sent by You regarding the attributes, performance or features of our Service.

1.3

‍Free Trial refers to a limited period of time that may be free when purchasing a Subscription.

1.4

‍Service refers to the BastionZero service, accessible via http://cloud.bastionzero.com.

1.5

‍Subscription refers to the access to the Service that the Company provides to You on either a free trial or paid subscription basis.

1.6

‍Website refers to BastionZero’s website, which is located at http://www.bastionzero.com

2.0 Subscription Fees And Payment; Refunds

Each Subscription period is month-to-month and, except in the case of any Free Trial that the Company may offer to You, the Company will bill You monthly in advance, on a recurring basis, via a credit or debit card, for each monthly Subscription period. You Subscription will automatically renew each month at the current Subscription unless either party notifies the other party in writing that it elects to cancel your Subscription. If you cancel your Subscription, You will not receive a refund for the fees that you have paid for the current Subscription period, however, the Service will remain available to you through the end of that period. The Company reserves the right at any time to modify its Subscription fee, subject to providing You not less than ten (10) days’ advanced written notice of the Fee modification. Unless You notify the Company that You elect to the cancel Your Subscription, the modified fee will apply to the Subscription period that immediately follows the Company’s notification. Except to the extent required by law, paid Subscription fees are not refundable, however, the Company will, in its sole discretion, consider refund requests on a case-by-case basis. ‍

3.0 Free Trial

‍The Company may, at its sole discretion, offer a Subscription with a Free Trial for a limited period of time.  You may be required to enter Your billing information to sign up for the Free Trial. If You do enter Your billing information when signing up for a Free Trial, You will not be charged any Subscription fees until the Free Trial has expired. On the last day of the Free Trial period, unless You have cancelled Your Subscription, You will be automatically charged the applicable Subscription fees for the type of Subscription You have selected.  The type of subscription may be Teams or Commercial and is selected based on the number of users who will log into the service.  At any time and without notice, the Company reserves the right to modify the terms and conditions of or cancel the Free Trial.

4.0 Subscription Availability, License And Use Restrictions

The Service shall be made available to you either on a temporary basis, in the case of Free Trials (described below), or with a paid Subscription. Subject to the terms and conditions of this Agreement, the Company grants You a non-exclusive, non-transferable, revocable, royalty-free, limited license (without the right to sublicense) to use the Service solely for Your internal business purposes. In using the Service, you agree that you shall not (a) reproduce, license, sublicense sell, resell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Service; (b) interfere with, disrupt, modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service or the software that comprises it (the “Service Software”); (c) interfere with, disrupt, alter, translate, or modify the Service or Service Software; (d) remove any copyright or other proprietary rights notices in or on the Service or Service Software; or (e) use the Service for any purpose other than the purpose for which the Service is intended.

5.0 Customer And Company Obligations

You agree to take all reasonable steps to safeguard the Service to ensure that no unauthorized person has access to it. Each party acknowledges and agrees that the Service comprises valuable, confidential information and trade secrets and that the unauthorized use and/or copying of the same would be harmful to the Company. Each of the Customer and the Company represents and warrants that it will comply with all laws, rules and regulations that apply to its use or delivery of the Service, as applicable and any other activities in connection with this Agreement.

6.0 Updates

The  Company may revise, update, upgrade or discontinue the Service at any time, without prior notice to You but will endeavor to provide You notice wherever possible. If the Company ceases to make the Service available, it will provide a pro rata refund to You for any prepaid fees paid that you have made for the Service based on the amount of time remaining in the applicable term. During the term of your Subscription, the Company may, in its sole discretion, provide You with updates or upgrades. The Company is not obligated to provide any updates or upgrades to the Service. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement, unless the Company expressly states otherwise.

7.0 Ownership

All right, title, and interest in and to the Service, and all Company copyrights and trademarks (collectively, “Intellectual Property”) are owned and retained by the Company or its suppliers. Any rights not expressly granted by the Company in this Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Service and Intellectual Property. Except for Open Source Software, any third-party software included in the Service may only be used in conjunction with the Service, and is not licensed for use independent from Service.

8.0 Open Source Software

Certain items of software may be provided to Customer with the Service that are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 4. Instead, each item of Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Open Source Software. If required by any license for particular Open Source Software, the Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request to product@bastionzero.com.

9.0 Feedback

You assign all rights, title and interest in any Feedback You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback without restriction.

10.0 Termination

We may terminate this Agreement or suspend Your access to the Service immediately, without prior notice or liability if You breach these Terms and Conditions. Upon termination, Your right to use the Service will cease immediately.

11.0 Warranties Disclaimer

The Service is provided to You "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Service will meet Your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. Without limiting the foregoing, the Company makes no representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components. Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

12. 0 Indemnification

12.1

By the Company. The Company shall defend Customer and its employees, officers, and directors (“Customer Indemnified Parties”) harmless from and against any third-party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Service infringes or misappropriates any third-party Intellectual Property rights (subject to Section 12.2 below).  The Company shall, at its expense, defend such Claims and pay damages finally awarded against Customer, or paid by Customer pursuant to an executed settlement agreement, in connection therewith.

12.2

Exclusive Remedy. If the Service becomes, or in the Company’s opinion is likely to become, the subject of an infringement claim, the Company may, at its option and expense, in addition to its indemnity obligations in Section 12.1, above, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, (b) replace or modify the Service so it becomes non-infringing, or (c) terminate this Agreement by written notice to Customer and promptly refund any prepaid amounts to Customer. Notwithstanding the foregoing, the Company will have no obligation under Section 12.1, this Section 12.2 or otherwise with respect to any infringement claim based upon (i) any unauthorized use, reproduction, or distribution of the Service by Customer, (ii) any use of the Service in combination with other products, equipment, software, or data not supplied by the Company, except such products, equipment software and data to which the parties mutually agree, (iii) any use, reproduction, or distribution of any release of the Service other than the most current release and the next most recent prior release of the Service if Customer has been advised of the need to upgrade by the Company in order to protect against infringement, or (iv) any modification of the Service by any person other than the Company, if the infringement would not have occurred but for such modification. Sections 12.1 and 12.2 state the Company’s entire liability and Customer’s sole and exclusive remedy for Customer infringement Claims.

12.3

By Customer. Customer shall indemnify and hold the Company and its employees, officers, and directors harmless from and against any and all third-party Claims arising from Customer’s alleged or actual breach of Sections 4 or 5 of this Agreement. Customer shall, at its expense, defend such Claims and pay damages finally awarded against the Company, or paid by the Company pursuant to an executed settlement agreement, in connection therewith.

12.4

Indemnification Procedures. The indemnification obligations in this Section 12 shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party's expense.

13.0 Limitation Of Remedies And Damages

Except for each party’s indemnification obligations set forth in Section 12, to the maximum extent permitted by applicable law, (a) in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Service or third-party software used with the Service, or otherwise in connection with any provision of this Agreement), even if the Company or any Company supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose; and (b) each party and its suppliers’ aggregate cumulative liability for any cause whatsoever hereunder shall not exceed the greater of one hundred dollars ($100.00) or the total fees that Customer has paid the Company for the Service during the twelve (12)-month period immediately preceding the date on which a party alleges the events that caused such damage occurred.

14.0 Dispute Resolution

Excluding any claims arising from or related to the infringement or misappropriation of the Service, the parties will attempt to resolve any claim, dispute or controversy between the parties (whether in contract, tort or otherwise) (a “Dispute”) through face-to-face negotiation between authorized representatives of each party or through mediation using a mutually agreeable mediator. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time period after a party has notified the other of the Dispute’s existence, the Dispute will be settled by binding arbitration, held in the Commonwealth of Massachusetts according to the then current CPR Rules for Non-Administered Arbitration (“Arbitration”). Each party agrees that such arbitration shall be conducted on an individual basis and not in a class, consolidated or representative action. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, neither party is entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. The existence or results of any negotiation, mediation or arbitration will be treated as confidential. If the arbitration provision in this Agreement is found unenforceable or not to apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in the Commonwealth of Massachusetts.

15.0 EXPORT

The Service may be subject export requirements, including licenses, under United States or foreign laws. Each party shall comply with all applicable relevant laws, whether United States or foreign, governing the exports of the Service.

16.0 PRIVACY

The Company’s Privacy Policy (located at www.bastionzero.com/privacy_policy.html) explains how the Company treats personal data and protects individual privacy rights when customers use the Service. In using the Service, You agree that the Company may use such data according to the Privacy Policy.

17.0 GOVERNING LAW

This Agreement is governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles.

18.0 FORCE MAJEURE

Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, acts of terrorism, Internet or power outages, or viruses which did not result from the acts or omissions of such party (“Force Majeure Event”). The time for any performance required hereunder will be extended by the delay incurred as a result of such Force Majeure Event.

19.0 HEADINGS; INTERPRETATION

The section headings used herein are for convenience of reference only and do not form a part of this Agreement. No construction or inference shall be derived therefrom. All references to “including” mean “including without limitation.”

20.0 WAIVER

The Company’s failure to enforce at any time, or for any period of time, any term of this Agreement shall not be construed as a waiver of the Company’s rights thereafter to enforce such term. The Company’s waiver of a Customer default will not be deemed a continuing waiver, but will apply solely to the instance to which the waiver is directed.

21.0 CONFLICTS; AMENDMENT

This Agreement sets forth the entire agreement and understanding between the Company and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings or agreements (including non-disclosure or confidentiality agreements), whether oral or written, regarding the same subject matter. This Agreement expressly supersedes and replaces in their entirety any pre-printed terms on a Customer purchase order or similar document.

22.0 SEVERABILITY

If any term or condition of this Agreement is deemed unenforceable, it shall be severed, and every other provision of this Agreement shall be enforced as if the unenforceable term or condition had never been a part hereof.

23.0 ASSIGNMENT

Neither party may assign this Agreement without the other party’s prior written consent, provided that either party may assign this Agreement without the other party’s consent in connection with a merger, acquisition, or sale of all or substantially all of its assets or business to which this Agreement relates. Either party who assigns this Agreement as permitted in this Section 23 shall provide the other party with prompt notice of such assignment. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

24.0 INDEPENDENT PARTIES

The parties to this Agreement are independent contractors, and this Agreement does not create any partnership, joint venture or agency relationship between the Company and Customer.

25.0 NOTICES

Any notice delivered by the Company to Customer under this Agreement will be delivered by email to the email address that Customer has provided to the Company. Customer will direct legal notices or other correspondence under this Agreement to the Company at legal@bastionzero.com.