1. Introduction

Unless otherwise provided for in a current signed Agreement between You and Apvera Pte. Ltd. (“Apvera” “We” and “Us”), this Agreement applies to the Services as specified on the order form, including addenda and supplements thereto, (“Order Form”) each of which are incorporated into this Agreement.

THIS AGREEMENT GOVERNS YOUR USE OF OUR SOFTWARE, HARDWARE AND SERVICES.

IF YOU REGISTER FOR A FREE TRIAL (OR PROOF-OF-CONCEPT) FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE OR SERVICES.

This Agreement was last updated on 1 October 2016. It is effective between You and Us as of the date of You accepting this Agreement.

  1. Services

By accepting this Agreement You engage Apvera to provide You with software and/or hardware and/or services which track employee use of Your information technology systems to identify behavioural patterns and reveal anomalous insider threat patterns in real time and more particularly you engage Apvera to provide the services set out in the applicable Order Form (the “Services”) which are provided to you in order to allow You to prevent loss of Your proprietary data (the “Purpose”).

  1. Free Trial Terms

If You engage with Us for a free trial or “Proof of Concept”, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any purchased Service(s) ordered by You, or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web pages for the Services You sign into, or install. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL.

NOTWITHSTANDING CLAUSE 5 (WARRANTIES, EXCLUSIVE REMEDY AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

  1. User of Service

4.1. Apvera responsibilities.                                  

We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Apvera standard support for the Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, internet service provider failure or delay, third party application, or denial of service attack.

4.2. Your responsibilities.

You shall (a) allow access to the Services only to such persons as have been provided with a copy of and informed of their obligations to comply with this Agreement (each a “User”) and shall not allow access to the Services or provide any extracted data to any party who is not a User, (b) be responsible for Users’ compliance with this Agreement, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Apvera promptly of any such unauthorized access or use.

You shall not (a) use the Services other than in accordance with this Agreement and any other legally binding documentation entered into in relation to the Services, all applicable laws and government regulations (b) sell, resell, rent or lease the Services, (c) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (d) attempt to gain unauthorized access to the Services or their related systems or networks, (e) use the Services to conduct comparative or competitive analyses, including benchmarking; (f) reverse engineer, decompile, reverse compile, reduce to human readable form or otherwise access the source code of the Services; (g) build a competitive product or service; or (h) remove or otherwise tamper with any proprietary notices contained on or in the Services.

  1. Intellectual Property

“Intellectual Property” means trade-marks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, database rights and all other similar rights in any part of the world (including Know-how) including, without limitation, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.

“Know-how” means confidential and proprietary technical and commercial information and techniques in any form including, without limitation, drawings, test results, reports, project reports and procedures, instruction and training manuals, market forecasts and lists and particulars of customers and suppliers.

5.1. Reservation of Rights in the Services.

All content included in the Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, trademarks, service marks and other Intellectual Property (“Apvera IP”) is owned by or licensed to Apvera, and protected by copyright and other intellectual property rights under international laws and conventions. All such rights are reserved. You do not acquire any ownership rights in the Apvera IP from using the Services.

Apvera grants you a non-exclusive licence to use the Services subject to the terms of this Agreement. The licence granted by this Agreement is to use the Apvera IP and the Services for the Purpose only and strictly in accordance with this Agreement.

You will not copy, reproduce, modify, merge, distribute, transmit, broadcast, display, sell, license, upload, or otherwise exploit any Apvera IP without Our prior written consent. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. You must not use any part of the Services for commercial purposes without obtaining a licence to do so from us or our licensors. You will not register or attempt to register any competing intellectual property rights to the Apvera IP, delete or tamper with any proprietary notices on or in the Apvera IP or take or use any action that diminishes the value of any part of the Apvera IP.

You shall not, either directly or indirectly alter, revise, enhance, customize or otherwise change or modify the Services or any part thereof without Our prior written consent, which consent may be withheld in the sole and absolute discretion of Apvera. If consent is given, and unless the parties agree otherwise, You shall deliver to Us all such alterations, revisions, enhancements, customisations, changes or modifications and an assignment of all copyright or other intellectual property interest and waiver of any moral rights that You or any other person may have in the same.

5.2. Proprietary rights to Your Data.

Subject to the limited rights granted by You under this Agreement, Apvera acquires no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.

  1. Data Protection and Privacy

You shall provide Apvera with access to certain data regarding the activity within and usage of Your IT systems by Your employees (“Employees”) including but not limited to Employees’ machine-generated Internet protocol addresses, hardware identification, operating system, application software, content, information and other non-personally identifiable information (“Data”).

6.1 Consent to Use of Data

You represent and warrant that you have the necessary rights and licenses required to provide your Data to Apvera in connection with your use of the Services and that by providing your Data in this manner, you will not violate any intellectual property rights, confidential relationships, contractual obligations or laws of third parties Singapore  (including but not limited to Your employees) or any applicable data protection or privacy laws. Without limiting the generality of the foregoing, you shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personal data or personally identifiable information of such data subjects via the Services by Apvera and/or you.

6.2. Collection, Use and Disclosure of Data.

Apvera collects and uses the Data only in order to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. The Data, and any data extrapolated from the Data including any analysis of such Data is made available only to (a) You and your Users (b) Us and our employees to the extent necessary to provide the Services and is not provided to or accessible by any third party except as compelled by law or as expressly permitted in writing by You.

You acknowledge and agree that the collection by Us of aggregated anonymous data is critical to maintaining the functionality of the Services and that We are free to use aggregated anonymous data in any manner in order to deliver and/or improve Our products and services.

6.3. Correction of Data.

To the extent that any Data is or becomes inaccurate, incomplete or is not up-to-date please contact Us as soon as possible so that we can update the Data accordingly. We will process any requested changes as soon as practicable. We will not be responsible for the accuracy of the Data other than where You have notified us in writing of inaccuracies.

6.4. User Option to Decrypt.

Apvera provides you with the option to decrypt the transmission of your Data. You acknowledge that it is your responsibility to dencrypt the transmission of your Data should you wish to disable this functionality enabled by default. In the event you decide not to utilize encryption and transmit your Data unencrypted over a network, you assume all related risks for doing so. Apvera will not be liable for any liabilities arising from your use of the Services (including your transmission of Data) over the internet or other network.

6.5. Storage and Security of Data.

Apvera provides the Service from the United States, Brazil, United Kingdom, Japan, Singapore, and Australia. By using and accessing the Service, you understand and agree to the storage and processing of your Data and any other information you choose to provide in these countries. Apvera reserves the right to store and process your Data and any other information you choose to provide outside of the these countries and will endeavor to give you 30 days’ notice in the event of such a change.

We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.

6.6. Sensor Appliance.

Title to and/or ownership of any customer premise equipment (CPE) provided to You by Apvera under the Service shall remain with Apvera. You agree not to tamper with, modify, reverse engineer, de-compile, disassemble, translate, modify,  make error corrections, or otherwise alter any CPE provided to You under the Service, nor permit third parties not authorized by Apvera. All CPE provided in conjunction with the Service must be returned to Apvera upon termination of the Services for any reason. You must contact Apvera within thirty (30) days of such termination (unless contacted earlier by Apvera) to schedule pickup of CPE, or You shall be deemed to have purchased such CPE and shall be invoiced for the replacement cost of such CPE. Risk of loss of CPE or damage to any CPE, provided to You as an integral part of the Services is assumed by You, except when such damage is caused solely by Apvera in the installation or maintenance of such CPE. Apvera retains title and all rights to such CPE.

6.7. Compliance.

You shall be solely responsible for ensuring that any processing of Data by Apvera and/or you via the Services does not violate any applicable laws. You shall not process or submit to the Services any Data that includes any: (i) personal health information; (ii) government issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (iv) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive or any analagous laws or regulations which apply to any subjects of the Data provided by You to Apvera, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense.

To the extent that any personal data is included by You in the Data, or the Data could be combined with other available information to enable its conversion into personal data, You indemnify Apvera in against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Apvera arising out of or in connection with any such personal data.

  1. Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR THIRD PARTY.

  1. Limitation of Liability

8.1. YOU ACKNOWLEDGE AND AGREE THAT NEITHER APVERA NOR ITS AFFILIATES, OFFICERS OR EMPLOYEES ASSUME ANY DUTY OF CARE TO YOU OR ANY OTHER PERSON WITH RESPECT TO THE SERVICES AND YOU AGREE THAT THEY HAVE NO LIABILITY WHATSOEVER TO YOU (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY) AND YOU SHALL HAVE NO REMEDIES AGAINST THEM WITH RESPECT TO THE SERVICES, THIS AGREEMENT OR ANY USE OR RELIANCE OF THE SAME MADE BY YOU OR ANY PERSON THROUGH YOU, INCLUDING WITHOUT LIMITATION ANY LOSS RESULTING FROM REJECTION OR ACCEPTANCE OF EMAIL OR DECISION MADE IN RESPECT OF ANY RELATIONSHIP ADVISED OR OMITTED ON THE BASIS OF THE SERVICES AND CUSTOMER DATABASE. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), LIABILITY TO THIRD PARTIES OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY, EVEN IF APVERA HAS BEEN INFORMED OF POSSIBILITY OF LIABILITY, SUCH LIABILITY IS SPECIFICALLY EXCLUDED. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES AND DOCUMENTATION NECESSARY TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE USE AND RESULTS OF THE SERVICES. IN ANY EVENT, EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY YOU TO APVERA UNDER SUCH RELEVANT ORDER FORM DURING THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN APVERA AND YOU AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO APVERA. HOWEVER, THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CLAIMS ARISING AS A RESULT OF ANY BREACH BY YOU AND MORE PARTICULARLY ANY INFRINGEMENT OF APVERA’S INTELLECTUAL PROPERTY RIGHTS, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.

8.2. Nothing in this Agreement excludes or restricts either party’s liability for (i) death or personal injury resulting from its negligence or its employees’ negligence while acting in the course of his or her employment or (ii) any other liability which cannot be excluded or limited by applicable law.

  1. Confidentiality

9.1. Each party must keep each other’s Confidential Information and Know-how confidential, using commercially reasonable measures but in no event less than the same degree of care used to protect its own Confidential Information, unless authorised by the other party to disclose it. “Confidential Information” means information that, at the time of disclosure, is clearly marked as confidential or in the circumstances would be considered to be confidential. As to Apvera, Confidential Information includes, without limitation, the Services, related documentation, specifications, pricing, disclosures in connection with any technical support provided and the terms and conditions of this Agreement. As to You, Confidential information includes the Data and other communications message or metadata. Confidential Information shall remain the sole property of the disclosing party or its licensors. Apvera may disclose Confidential Information to such of its employees, contractors, advisors and consultants as need to know the information in order to perform obligations under this Agreement.

9.2 This Clause does not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or publically available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.

  1. Term and Termination

10.1. Term of Agreement.

This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

10.2. Term of Service for Subscriptions.

The term of each subscription shall be as specified in the applicable Order Form.

10.3. Termination.

Apvera is entitled to terminate this Agreement or any specific Order Form immediately without notice in the case of breach by You of any term of the Order Form or this Agreement. You are entitled to terminate this Agreement and/or any Order Form by 14 days written notice in the case of breach by Us of any material term of the Order Form or this Agreement where the breach is not cured within fourteen (14) days of written notice of such breach.  When either party terminates the rights granted under a particular Order Form all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.

10.4. Processing data after termination or subscription period.

To allow for late renewals, and to provide for uninterrupted data analysis; after the final expiry date of subscription to the Services, We will continue to accept and process Your Data for a period of ninety (90) days, after which we will stop accepting and processing Your Data. You should take all necessary steps, as per the documentation provided, to stop or re-configure services that send Your Data to Us. Following early termination of this Agreement, We may take immediate steps to stop accepting and processing Your Data.

10.5. Data retention and deletion.

We will delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited, either upon written request from You, or ultimately after thirty (30) days after the last Data is received from You. Following early termination of this Agreement and unless legally prohibited, we may delete Your Data before thirty (30) days has passed.

10.6. Data recovery.

For a period of sixty (60) days after Your Data has been deleted, under normal circumstances and unless legally prohibited, it should be possible to restore Your Data from our backup repositories, after which time the data is permanently destroyed. Because this process requires manual intervention and time to perform the recovery, there will be a cost for this service – in such circumstances, please contact Us for a quotation.

10.7. Fees.

You will pay all fees specified as applicable for the Service by the number of endpoints being modeled. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and amount of information modeled and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term without written consent of by Apvera. Apvera may agree to maximum “not to exceed” use based pricing for any account or service for any terms as mutually agree to by both parties. Should your usage exceed such prior agreed to volume, Apvera reserves the right to either cancel the remainder or the term or asses an equally appropriate invoice amount.

10.8. Invoicing and Payment.

Unless otherwise stated in a written Order Form, charges shall begin on the activation date of the Service, and Apvera will invoice You in on the first day of service for which the period is applicable, either monthly or annually, and invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

10.9. Overdue Charges.

If any invoiced amount is not received by Apvera by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on shorter payment terms than those originally agreed.

10.10 Suspension of Service and Acceleration.

If any amount owed by You under this or any other agreement for Services is 30 or more days overdue, Apvera may, without limiting other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full.

10.11. Taxes.

Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, Apvera will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Apvera based on Apvera income, property and employees.

10.12. Future Functionality.

You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

  1. Governing Law

This Agreement shall be governed by the laws of the Republic of Singapore. To the maximum extent allowed, all implied terms shall be excluded from this contract.

  1. General Terms

12.1. Entire Agreement and Order of Precedence.

This Agreement and any related Order Form are the entire agreement between You and Us regarding Your use of Services and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2). the applicable Order Form.

12.2. Assignment.

Apvera may assign any of its rights or obligations hereunder at our sole discretion. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Apvera’s prior written consent (not to be unreasonably withheld).

12.3. Changes to this Agreement.

Apvera reserves the right to change its Terms of Service (this Agreement) from time to time and at its sole discretion. The latest agreement as published on www.apvera.com governs the relationship between the parties.