1. SAAS SERVICES AND SUPPORT
1.1 These Terms of Service shall apply to all PhishOn services performed (“PhishOn Services”) by Hueya, Inc. (“HUEYA”). “Customer” shall refer to the person or entity that is receiving PhishOn Services. Customer and HUEYA have entered into a Services Agreement (“Agreement”) for the PhishOn Services. The Agreement and all purchase orders comprising the Agreement are subject to these Terms of Service. In the event there is a conflict between the Agreement and these Terms of Service, these Terms of Service shall govern. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them under the Agreement.
1.2 HUEYA will use commercially reasonable efforts to provide Customer the PhishOn Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. HUEYA reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Subject to the terms hereof, HUEYA will provide Customer with reasonable technical support services in accordance with HUEYA’s standard practice.
1.3 CUSTOMER’S USE OF THE PhishOn SERVICES CONSTITUTES HIS OR HER ACCEPTANCE OF THESE TERMS OF SERVICE. HUEYA MAY CHANGE, UPDATE, ADD OR REMOVE PROVISIONS OF THESE TERMS OF SERVICE AT ANY TIME BY POSTING THOSE CHANGES ON HUEYA’S SITE. CUSTOMER’S CONTINUED USE OF THE PhishOn SERVICES AFTER SUCH POSTING SHALL CONSTITUTE HIR OR HER ACCEPTANCE OF SUCH CHANGES TO THESE TERMS OF SERVICE. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE UPDATED TERMS OF SERVICE, CUSTOMER MUST STOP USING THE PhishOn SERVICES.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the PhishOn Services or any software, documentation or data related to the PhishOn Services (“Software”); modify, translate, or create derivative works based on the PhishOn Services or any Software (except to the extent expressly permitted by HUEYA or authorized within the PhishOn Services); use the PhishOn Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, HUEYA hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the PhishOn Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the PhishOn Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the PhishOn Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of HUEYA includes non-public information regarding features, functionality and performance of the PhishOn Service. Proprietary Information of Customer includes non-public data provided by Customer to HUEYA to enable the provision of the PhishOn Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the PhishOn Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the PhishOn Services. HUEYA shall own and retain all right, title and interest in and to (a) the PhishOn Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation PhishOn Services or support, and (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Customer will pay HUEYA the then applicable fees described in the Agreement for the PhishOn Services (“Annual Service Fee”) and Implementation PhishOn Services (“One Time Fee”) in accordance with the terms therein. HUEYA reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that HUEYA has billed Customer incorrectly, Customer must contact HUEYA no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to HUEYA’s customer support department. CUSTOMER’S AGREEMENT WILL RENEW AUTOMATICALLY UNTIL CANCELLED BY CUSTOMER.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Agreement, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the PhishOn Services up to and including the last day on which the PhishOn Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1 HUEYA shall use reasonable efforts consistent with prevailing industry standards to maintain the PhishOn Services in a manner which minimizes errors and interruptions in the PhishOn Services and shall perform the Implementation PhishOn Services consistent with the degree of care and skill ordinarily exercised by members of HUEYA's profession currently practicing under similar circumstances and in the same locality. PhishOn Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by HUEYA or by third-party providers, or because of other causes beyond HUEYA’s reasonable control, but HUEYA shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, HUEYA DOES NOT WARRANT THAT THE PhishOn SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PhishOn SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PhishOn SERVICES AND IMPLEMENTATION PhishOn SERVICES ARE PROVIDED “AS IS” AND HUEYA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 HUEYA shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided HUEYA is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; HUEYA will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by HUEYA, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by HUEYA, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the PhishOn Services are held by a court of competent jurisdiction to be or are believed by HUEYA to be infringing, HUEYA may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, HUEYA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, PhishOn SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND HUEYA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO HUEYA FOR THE PhishOn SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT HUEYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with HUEYA’s prior written consent. HUEYA may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind HUEYA in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.