Mitiga Platform Terms of Use

1. Applicability. 
1.1. These Mitiga platform terms of use (“PTOU”) between Mitiga Security Inc. and its affiliates (“Mitiga”) and you ("Customer") govern the Customer’s access and use of the Platform and/or the Services (both as defined below), together with the Mitiga platform privacy policy (“PP”, together with the PTOU, the "Terms"), and any and all other policies implemented and updated by Mitiga, from time to time, with respect to the Mitiga Platform and/or the Services. 
1.2. By accessing the Platform and/or by using the Services, Customer accepts the Terms and agrees to be bound by them.  

2. Definitions. 
2.1. “Confidential Information” means all information directly or indirectly disclosed by either party ("Disclosing Party"), its affiliates, business partners or their respective employees, contractors or agents to the other party ("Receiving Party"), including without limitation (a) non-public information relating to Disclosing Party's or its affiliates' or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that Disclosing Party is obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between the parties and/or their affiliates. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this PTOU; (ii) can be shown by documentation to have been known to Receiving Party at the time of its disclosure by Disclosing Party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by Receiving Party without reference to the Confidential Information. 
2.2. “Customer Data” means all data Mitiga collects from Customer, including but not limited to Customer Credentials and Forensic Data.
2.3. “Customer Credentials” means Customer’s credentials which allow Mitiga to access Customer’s Data in third-party cloud services used by Customer.
2.4. “Documentation” means any technical and operations manuals and specifications for the Platform (and/or the Software), as may be provided and amended by Mitiga from time to time.
2.5. “Feedback” means all suggested improvements and comments to the Platform or the Software that Customer provides to Mitiga. 
2.6. “Forensic Data” means Customer’s Data considered to be in use for the investigation, examination and analysis to support a critical (e.g., S1/S2) incident.
2.7. “Personal Information” refers to the definition of that term or any other similar term defined under the applicable data protection laws. 
2.8. “Order Form” means a separately executed document to be entered into by Mitiga and Customer, or its affiliate, as applicable, incorporating the provisions of this PTOU setting forth the details of the license granted to the Customer to access the Platform. 
2.9. “Platform” means the Mitiga proprietary cloud-based technology, which enables Mitiga upon onboarding of the Services to collect and store Customer Data and, thereby enhancing and facilitating proactive readiness activity and the deployment of an incident response when required.
2.10. “Services” means the services provided by Mitiga hereunder via the Platform as well as under the Order Form.  
2.11. “Mitiga Content” means content Mitiga makes available in connection with the Platform.
2.12. “Software” means any software and/or software components Mitiga may provide to Customer as part of the Platform. 

3. Platform. 
3.1. Right to Access and Use the Platform. Mitiga and/or its licensors (if any) own and reserve all right, title, and interest in and to the Platform (as defined below). During the Term (as defined below) Mitiga grants Customer a limited, revocable, non-exclusive, non-sub-licensable, non-transferrable right to access and use the Platform solely in accordance with these PTOU and subject to the Customer's compliance with the terms and conditions hereof. In case Mitiga provides Customer with certain Software as part of the Platform, Mitiga grants Customer a limited, revocable, non-exclusive, non-sub-licensable, non-transferrable license to use the Software, solely in accordance with the PTOU and subject to the Customer's compliance with the terms and conditions hereof. Except as explicitly provided herein, Customer does not obtain any right to the Platform or the Software, including any intellectual property rights.  
3.2. Restrictions. Customer must not use the Platform (or any part thereof) in any manner or for any purpose other than as expressly permitted in the PTOU. Customer shall not, and/or shall not attempt to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of the Platform, or any part thereof; (ii) reverse engineer, disassemble, or decompile the Platform, or apply any other process or procedure to derive the source code of any software included in the Platform; (iii) create links to any content available via the Platform, without Mitiga’s prior written approval; (iv) use manual or automatic devices or software, coding robots or other means to access, explore, extract or index any page on the Platform; (v) scan the Platform, or test the vulnerability of the Platform, or breach the security or authentication measures of the Platform; (vi) use logos, trademarks or any other element protected by Mitiga’s intellectual property rights; (vii) simulate the appearance or functioning of the Platform, e.g. by mirroring; (viii) disturb or disrupt the Platform, directly or indirectly, or transmit or activate viruses via or on the Platform. All rights granted to Customer in the PTOU are conditional on Customer’s continued compliance with the PTOU, and such rights will immediately terminate if Customer does not comply with any of the terms and condition of the PTOU. 
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3.3. Customer Account.  
3.3.1. In order to access the Platform, the creation of a Customer account is required (collectively, an “Account”). For the creation of an Account, Customer must sign-up by providing certain information, as required at the sign-up page. 
3.3.2. Customer is responsible for all activities that occur under Customer's account, regardless of whether the activities are undertaken by Customer, Customer's employees or any third party and Mitiga is not responsible for any unauthorized access to Customer's account. Customer will contact Mitiga immediately if Customer believes an unauthorized third party may be using Customer's account, or if Customer's account information is lost or stolen. 
3.3.3. Customer must create a password to access Customer's Account. Customer is responsible for maintaining the confidentiality of Customer's Account and password and Customer must not disclose this information to any other person or entity. Customer also acknowledges that Customer's Account and password is personal to Customer, and Customer agrees not to provide any other person with access to the Platform using Customer's Account or password. Customer agrees to notify Mitiga immediately of any unauthorized access to or use of Customer's Account or password or any other breach of security at customersecurityservice@mitiga.io.
3.3.4. All information Customer provides for registration will be stored and used in accordance with Mitiga's privacy policy, as may be amended by Mitiga from time to time.
3.3.5. Mitiga may impose limits on certain features and services or restrict Customer's access to parts of or the entire Platform, terminate or limit any use of the Platform if Customer violates this PTOU or Mitiga otherwise objects to Customer's use of the Platform, at Mitiga's sole discretion.
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3.4. Support to Customer. Mitiga shall provide technical support, on a basis of reasonable effort, all in accordance with the terms set forth in the Mitiga SLA, as may be amended from time to time.
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3.5. Availability of the Platform. 
3.5.1. Mitiga will make reasonable commercial efforts to keep the Platform operational at all times. However, Mitiga might have to change, suspend, or discontinue any aspect of the Platform, or any part thereof, at any time, including the availability of the Platform. Mitiga reserves the right to update and make operational modifications to the Platform at any time. These updates and operational modifications to the Platform might make the Services momentarily unavailable. Customer acknowledges that it is normal to have a certain amount of system downtime and agrees not to hold Mitiga liable for any of the consequences of such interruptions.  
3.5.2. Customer acknowledges that the Services are partially based on third party services (interface, API, etc.) and that in the event of unavailability (including dysfunction) of one of the Services will be unavailable and Mitiga shall in no case be held responsible for any of the consequences. 
3.5.3. The Customer undertakes not to expose the Platform to any risk of piracy and attempted attacks on the vulnerability of the Platform and its security system, and to implement all appropriate measures to prevent those aforementioned risks or any other risk that may affect the Platform. 
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4. Customer's Representations and Acknowledgements.
4.1. Customer represents and warrants hereby: (i) that Customer is authorized to enter into the PTOU; (ii) that Customer will fully comply with the terms and conditions of this PTOU; (iii) that Customer is the rightful owner of the Customer Data or that Customer has (and will continue to have) all the necessary licenses, rights, consents, and permissions from the rightful owners of such Customer Data, and that such data does not infringe any third party’s intellectual property rights and are in compliant with any applicable law; (iv) that Customer authorizes Mitiga to store and otherwise process the Customer Data by the Platform as necessary in order to perform the Services and/or as described in the PTOU and/or in the PP;  
4.2. Customer further represents and acknowledges that:
4.2.1. Customer acknowledges that Mitiga is not responsible or liable in any way for the Customer Data uploaded by Customer. 
4.2.2. Mitiga will base any comments or recommendations as to the functional or technical capabilities of any products in use or being considered by Customer solely on information provided by Customer's vendors, directly or through Customer. Mitiga is not responsible for the completeness or accuracy of any Customer Data or for confirming any of it. Moreover, Mitiga does not assume any responsibility for any third-party products, programs or services, their performance or otherwise.  
4.2.3. With respect to Personal Information in the Customer Data (i) Customer has and shall maintain throughout the term all necessary rights and consents required under applicable law to provide Personal Information to Mitiga, and to let Mitiga store and otherwise process such Personal Information in order to provide the Services and/or as described in the PTOU and/or the PP; (ii) to the extent the basis of the collection of data is consent, it shall ensure that a record of such consents is maintained, as required under applicable data protection law.  
4.2.4. Customer and its designees will at all times comply with all applicable data protection laws. 
4.2.5. Customer hereby authorizes Mitiga to perform the Mitiga Services and grants Mitiga access to Customer's facilities, Customer's computer systems, websites, web related assets, including but not limited to Customer's digital assets whether on premise, or as part of any cloud environment (collectively, "Customer Systems"), as may be required by Mitiga from time to time in connection with the performance of the Services. Customer confirms that such authorization is not in violation of any agreement to which the Customer is a party, or any regulation or law applicable to the Customer.
4.2.6. Customer acknowledges that Mitiga will not identify, address, or correct any errors or defects in Customer Systems, whether or not due to imprecise or ambiguous entry, storage, interpretation or processing or reporting of data. Mitiga will not be responsible for any defect or problem arising out of or related to data processing in any Customer Systems. Moreover, Mitiga will not conduct a review to detect fraud or illegal acts. The Services are advisory in nature. None of the Services or any reports will constitute any legal opinion or advice. 
4.2.7. Mitiga may be proposing recommendations for Customer's consideration and implementation. However, Customer acknowledges that Customer is responsible for all management decisions relating to the Services, the use or implementation of the output of the Services and for determining whether the Services are appropriate for Customer's purposes.  
4.2.8. Mitiga may retain, disclose, and use general information about the types of services Mitiga provides to Customer for research and thought leadership purposes, provided that such information does not include Customer information that is subject to Mitiga's confidentiality obligations hereunder and that Mitiga identifies Customer only in general terms in connection with such information (e.g., “a large financial institution”). 

5. Payment. The Payment for Mitiga’s Platform Services will be set forth in the respective Order Form. 

6. Term; Termination. 
6.1. Term. This PTOU will be in effect until the earlier of (i) any termination or expiration of the Order Form, (ii) until Mitiga and Customer have agreed in writing to terminate Mitiga’s Services hereunder, or (iii) termination in accordance with section 6.2 below.
6.2. Termination. Immediate Termination. Notwithstanding anything to the contrary herein, Mitiga may terminate this PTOU immediately upon notice to Customer upon the occurrence of one or more of the following (as determined by Mitiga at Mitiga’s sole discretion) (i) if Customer exceeds or otherwise violates the scope of the rights and/or licenses granted to Customer hereunder; or (ii) if Customer's use of the Platform and/or Mitiga’s access to the Customer Systems through the Platform poses a security risk to Mitiga, the Platform or to any third party, or might otherwise adversely impact the Platform or the systems or Content of any other Mitiga Customer, and/or may subject Mitiga, or any third party to liability; (iii) Customer has ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of Customer's assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (iv) in order to comply with applicable law and/or requests of governmental entities.
6.3. Effect of Termination. Upon any expiration or termination of this PTOU (i) Customer's rights under this PTOU shall immediately terminate; (ii) any interface of the Platform with the Customer Systems will cease and the Services will no longer be performed; (iii) Customer shall immediately make any outstanding payments owed to Mitiga. For the avoidance of doubt, it shall be clarified that Customer shall not be entitled to any refund payments from Mitiga; (iv) Customer will promptly return or, if instructed by Mitiga, destroy all Mitiga Content in Customer's possession; and (v) Sections 2, 3.2, 4, 6.3, 7-11 will survive any expiration or termination of this PTOU. 
6.4. Customer and Forensic Data. Without prior agreement, Mitiga will delete data and account access within thirty (30) days of cancellation of the Order Form.
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7. Proprietary Rights. 
7.1. Platform. All title, ownership rights, and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Platform and the Software shall remain in Mitiga, and/or its licensors, if any. Mitiga expressly reserves all rights to the foregoing, and except for the limited grant of rights expressly set forth herein, Mitiga does not grant Customer any right, title, or interest in any intellectual property owned or licensed by Mitiga. To the extent, if any, that ownership of the Platform, or any part thereof, does not automatically vest in Mitiga by virtue of the PTOU, or otherwise, Customer hereby transfers and assigns to Mitiga, upon the creation thereof, all rights, title and interest Customer may have in and to such Platform (and waives any and all moral rights, as applicable). 
7.2. Customer data. Customer represents and warrants that: (i) Customer and/or Customer's licensors own all right, title, and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this PTOU. Except as otherwise provided in this section, Mitiga does not obtain any rights under this PTOU from Customer or Customer's licensors to Customer Data, including any related intellectual property rights. Notwithstanding the foregoing, Customer grants Mitiga a revocable license to use Customer's logo, trademarks, trade names, or other designations of Customer for marketing purposes during the Term and thereafter. 
7.3. Feedback. If Customer provides any Feedback to Mitiga, Customer hereby assigns to Mitiga all right, title, and interest in and to such Feedback. Mitiga may use such Feedback without any payment or restriction.
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8. Indemnification. 
8.1. By Customer.  Customer will defend, indemnify, and hold harmless Mitiga and its licensors, employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) breach of this PTOU or violation of applicable law by Customer; (ii) breach of any third party PTOU; (iii) Customer Data, including but not limited to any claim involving alleged infringement or misappropriation of third-party rights by Customer Data or by the use, development, design, production, advertising or marketing of Customer Data. 
8.2. By Mitiga. Mitiga will defend, indemnify, and hold harmless Customer from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Customer as a result of third-party claims with respect to any breach of such third party's intellectual property due to Mitiga's acts or omissions under this PTOU, reduced to a final adverse, non-appealable judgment made by a court of competent jurisdiction and actually borne by Customer. Mitiga shall have no obligations or liability hereunder to the extent that the alleged infringement is based on the Customer Data. If Mitiga believes that the Platform might infringe, then Mitiga may in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Platform; (ii) replace or modify the allegedly infringing part of the Platform so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the foregoing clauses (i) and (ii) are not reasonably commercially feasible, terminate this PTOU immediately. This section states Mitiga's entire liability and Customer's exclusive remedy for any claims of infringement. 
8.3. Indemnification Conditions. The above defense and indemnification obligations of the indemnifying party under this section are subject to: (i) the indemnified party shall promptly give written notice to the indemnifying party with  respect  to  any claims which may require an indemnification under this PTOU; (ii) the indemnifying party being given immediate and complete control over the defense and/or settlement of the claim (however no compromise or settlement of any claim imposing financial liability upon the indemnified party may be effected without the prior written consent of indemnified party); and (iii) the indemnified party providing cooperation and assistance, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party's defense of or response to such claim.

9. Disclaimer. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MITIGA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE PLATFORM, THE SERVICES, THE SOFTWARE, ANY THIRPD PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, MITIGA MAKES NO WARRANTY THAT (i) THE PLATFORM, THE SERVICE AND/OR THE SOFTWARE WILL MEET CUSTOMER'S EXPECTATIONS; AND (ii) THE PLATFORM, THE SERVICE AND/OR THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER'S USE OF THE PLATFORM, THE SERVICE AND/OR THE SOFTWARE ARE AT CUSTOMER'S OWN RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVES ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE THAT RESULTS FROM THE PLATFORM, THE SERVICE AND/OR THE SOFTWARE.  
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10. Limitations of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, MITIGA'S AGGREGATE LIABILITY UNDER THIS PTOU WILL BE LIMITED TO THE AMOUNT MITIGA ACTUALLY RECEIVED BY CUSTOMER UNDER THE RESPECTIVE ORDER FORM FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  
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11. Miscellaneous. 
11.1. Entire PTOU. This PTOU constitutes the entire PTOU between the parties regarding the subject matter of this PTOU and supersedes all prior or contemporaneous representations, understandings, PTOU, or communications between the parties, whether written or oral, regarding the subject matter of this PTOU. If the terms of this PTOU are in conflict with the terms contained in any other document, the terms of this PTOU will prevail. In case this PTOU is translated, this English version of this PTOU will prevail over any translation. Any modification to this PTOU shall be subject to a written PTOU by the parties. 
11.2. Confidentiality. The Receiving Party will not disclose Confidential Information of the Disclosing Party during the Term or at any time during five (5) years following the end of the Term.  
11.3. Relationship of the Parties. The parties are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other party or has the authority to represent and/or bind the other party. This PTOU does not create any third-party beneficiary rights in any individual or entity that is not a party to this PTOU.
11.4. Notice. Any notice or communication required or permitted to be given by either party hereunder, (a) if delivered by hand, shall be deemed to have been received on the date of delivery; (b) if sent by first class mail, shall be deemed to have been received on the third business day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication. All communications and notices to be made or given pursuant to this PTOU must be in the English language.
11.5. Assignment. Neither party shall assign this PTOU, or delegate or sublicense any of its rights under this PTOU, without the other party’s prior written consent, except that either party may assign this PTOU as a whole to a successor to all or substantially all of its assets or business related to this PTOU, without such consent. 
11.6. MITIGA may make changes to this PTOU and any such amendments will be effective upon MITIGA's posting of such updated PTOU. Customer's continued use of the MITIGA Platform and/or the Services after such posting constitutes Customer's consent to be bound by this PTOU, as updated and amended. 
11.7. Severability. If any portion of this PTOU is held to be invalid or unenforceable, the remaining portions of this PTOU will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this PTOU but the rest of the PTOU will remain in full force and effect.
11.8. Governing Law; Venue. This PTOU shall be construed under the laws of the State of New York, and any dispute or claim with respect thereto shall be submitted to the exclusive jurisdiction of the competent courts in New York, United States of America. The United Nations Convention for the International Sale of Goods does not apply to this PTOU.