1. Terms and Conditions for the NetMinded Platform, NetMinder Platform and associated Applications
These Terms and Conditions govern the use, and SeeThru Network’s (“SeeThru”) provision, of the NetMinded management platform and associated applications (our “Service”). Other terms associated with the use of and subscription to the Service, such as pricing and the entity licensing the Service (“Customer”), are set forth in an order form that references these Terms and Conditions and is executed by Customer and SeeThru (“Order Form”). Where there is a direct conflict between these Terms and Conditions and an Order Form, the terms contained in the Order Form will apply. Any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of SeeThru. These Terms and Conditions together with the Order Form are referred to as the “Agreement.” The Service is available to users to whom Customer grants access to the Service under Customer’s account (“Users”) as more fully described in the Order Form.
2. Access to the Service
2.1 Customer’s Users may use and have access to the Service and the associated generally published technical documentation for the Service (“Documentation”) provided such use and access is for Customer’s own internal business operations and not for the benefit of a third party. Customer agrees to use and access the Services in compliance with any restrictions on an Order Form. In some cases, Users may need to download, install and use software provided by SeeThru in order to access the Service (“Software”) and SeeThru licenses Customer’s Users to do so provided the Software is used only in conjunction with the Service. The Documentation may be provided in hard copy form or online. Customer acknowledges that access to the Service via the Software may require that Customer upgrade the Software as such upgrades become available.
2.2 SeeThru will provide basic support services, unless otherwise stated on the Order Form. Support services are provided through telephone, electronic mail or another online mechanism.
2.3 Restrictions: Customer agrees not to, directly or indirectly:
2.3.1 modify, translate, copy or create derivative works based on the Service or any element of the Software,
2.3.2 “frame” or “mirror” any content forming part of the Service,
2.3.3 reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Software in whole or in part, except as and only to the extent this restriction is prohibited by law,
2.3.4 license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement,
2.3.5 remove or obscure any proprietary or other notice contained in the Service or
2.3.6 use the Service or Software in connection with the development or offering of a service or product substantially similar to the Service or copying the features or user interface of the Service.
2.4 It is Customer’s responsibility to ensure that Customer complies with all applicable laws and has the right to use the Service both as Customer is using it, and where Users are located.
2.5 Customer may identify an individual as the administrator for the Service who will receive an administrative user name and password for Customer’s account. Customer will ensure that its Users are aware of and use the Service only in compliance with this Agreement. Customer is responsible for all activities of Users and is responsible for ensuring the security and confidentiality of all User and administrator IDs and passwords for the Service. The Customer shall prevent unauthorized access to, or use of, the Service, and shall notify SeeThru promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service.
2.6 If third party services, applications, code, hardware or products (“Third Party Products”) are integrated or used in connection with the Services, Customer agrees that SeeThru makes no representations and disclaims all warranties, express or implied, regarding Third Party Products.
3. Proprietary Rights and Feedback
4. Confidentiality
5. User Data and Network Performance Data
5.1 In order to set up accounts and use the Services, Customer may provide information, such as IP address, username, password, and personally identifiable information (e.g., name, phone number, email address, etc.) (“User Data”). Customer grants SeeThru and its subcontractors the right to store, process and retrieve User Data in connection with providing and supporting the Services. Customer warrants that it has obtained required consent from Customer’s Users to transfer User Data to SeeThru and to process the User Data as contemplated by the Services, and agrees that SeeThru may transfer to, store and process User Data where SeeThru uses facilities in connection with the Services in order to provide the Services and support the Services. Such User Data provided or disclosed by Customer (as data controller or data exporter) is deemed “personal data” under applicable European Union law or regulation, and SeeThru shall comply with Customer’s reasonable, lawful instructions relating to the security and confidentiality of the User Data, and will maintain administrative, physical, and technical safeguards intended to protect the security and integrity of the User Data and will process the User Data only in accordance with Customer’s lawful instructions or the lawful instructions of the data subject.
5.2 Users may transmit, upload and store network performance data, IP addresses and other information (“Network Performance Data”) in connection with Customer’s use of the Service (“Content”). The Customer represents and warrants that it owns, or has the necessary permissions to use and authorize the use of such network performance data. Customer grants SeeThru and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to host, cache, copy, store and display Customer’s network performance data for the purpose of and in conjunction with providing and supporting the Service. Customer acknowledges and agrees that, except as expressly set forth herein, SeeThru is not responsible in any manner for Customer’s network performance data Content, and the Customer assumes all risk associated with the transmission, accuracy, quality, legality, and appropriateness of this network performance data.
6. Fees Payments and Taxes
7. Term and Termination
8. Limited Warranty and Disclaimer
8.1 SeeThru warrants that the Service will be provided in material compliance with the Documentation and to maintain the Service in a manner that minimizes errors and interruptions in the Service. However, the Service may be temporarily unavailable for scheduled or emergency maintenance, either by SeeThru or by third-party providers, or because of other causes beyond SeeThru’s reasonable control. SeeThru will use reasonable efforts to provide Customer with advance notice of any scheduled maintenance.
8.2 DISCLAIMER. THE ABOVE WARRANTY IS CUSTOMER’S EXCLUSIVE WARRANTY AND SEETHRU DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT SEETHRU DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER IS RESPONSIBLE AND SEETHRU SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS.
8.3 IF THE SERVICE PROVIDED IS A NO-CHARGE EVALUATION OR BETA RELEASE, THE FOLLOWING APPLIES IN PLACE OF SECTIONS 8.1
8.2: NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SERVICE IS PROVIDED BY SEETHRU IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, AND/OR COMPLETENESS WITH NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
8.4 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SEETHRU (OR ANY SUPPLIER, LICENSOR OR CHANNEL PARTNER OF SEETHRU) BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID AND/OR OWED BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT SEETHRU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Changes
9.1 SeeThru reserves the right to modify and/or update the Service and/or any components thereof, the Documentation, its support policies, its security and privacy policies and any other information and/or policies at SeeThru’s sole discretion and without notice; provided that such changes shall not materially decrease the functionality of the Service that Customer has subscribed to during the then current Term.
10. Jurisdiction
10.1 The English courts will have exclusive jurisdiction over any claim arising from, or related to this Agreement.
11. Miscellaneous