WHITEHAT SECURITY, INC.
COMPUTER BASED TRAINING – SERVICE TERMS
These WhiteHat Security, Inc. (“WhiteHat”) Service Terms (“Service Terms”) apply to the Services you (“You” or “Your”) will receive from WhiteHat directly or through its authorized reseller / partner. For the purpose of these Service Terms, “Services” or “Training” shall mean the computer based training and related services (including associated software and access to WhiteHat or its supplier’s hosted software application) provided with the Training. If You are accepting these Service Terms on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity (the “Customer”) to these Service Terms, and, in such event, “You” and/or “Your” will refer to the Customer.
PLEASE CAREFULLY READ THE FOLLOWING TERMS BEFORE ACCESSING THIS SITE, OR THE CONTENT (I.E. SELF HOSTING) AND THE COMPUTER BASED TRAINING SYSTEM (collectively the “SYSTEM”). BY ACCESSING THE SYSTEM, WHICH INCLUDES THE ONLINE TRAINING VIDEOS, YOU ACCEPT AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO ALL OF THE COVENANTS AND CONDITIONS IMPOSED IN THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE SERVICE TERMS AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF WHITEHAT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. WHITEHAT’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE SERVICE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE SERVICE TERMS ARE CONSIDERED AN OFFER BY WHITEHAT, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
“Access” or “Accessing” means accessing, using, viewing the content or otherwise obtaining information on the System or Content, where Self-Hosting.
“Agreement” or “Terms” refers to these Services Terms and any subsequent modifications thereto.
“Content” means the training videos and other media available on the Site, including the tests and exercises.
“Licensor” shall mean WhiteHat or its supplier licensor Infrared Security, LLC, or its authorized reseller from whom you’ve procured the Services.
“Subscriber” refers to any person or entity that purchases or uses a subscription to the System.
“Self-Hosting” shall mean where You have procured a license from Licensor to host and access the Content from Your servers. In the case of Self Hosting You will not Access the System.
“Training Materials” shall mean the Content as provided by Licensor to You for purposes of Self-Hosting, including any updates or customizations thereto.
“User” refers to any party who Accesses the System. If You are Accessing the System as an employee or agent of another, “User” refers to You and Your principal.
“Website” or “Site” refers to the website maintained on the World Wide Web by Licensor, from which you are accessing the System, and includes the online video library and tests.
“You” or “Your” refers to the User. If You are Accessing the System as an employee or agent of another, “You” or “Your” refers to the User and the User’s principal.
During the applicable subscription period, Licensor hereby grants each Subscriber a limited, non-exclusive, non-sublicensable and non-transferable license to Access the Content for the number of User licenses purchased by You, according to the provisions contained herein, and subject to the payment of the applicable subscription fees and adherence to these Terms.
Where You have procured the self-hosting option from Licensor and paid the applicable fees related to such option, during the applicable subscription period, Licensor hereby grants You a limited, non-exclusive non-sublicensable and non-transferable license to download and host the Content for Access within your systems, for the number of User licenses purchased by You.
In the Event of Self Hosting, (i) Licensor shall be deliver the Content to You in SCORM, facilitating integration into Your existing SCORM compatible Learning Management System (“LMS”) and (ii) You shall be responsible for all activities and costs associated with Your LMS, including but not limited to the provision of Users, ancillary administrative support, hosting tasks and costs.
You acknowledge that you must provide Licensor an email address for Your main contact responsible for Self-Hosting and email addresses for each individual User.
You agree to use reasonable efforts, such as virus scanning and other industry best practices, to ensure that the Training Materials are free of malicious code prior to any self-hosting.
ACCESS TO THE SYSTEM; MODIFICATION OF CONTENT
Licensor strives to provide Access to its Subscribers on a continuous basis. To that end, Licensor will take all commercially reasonable efforts to provide uninterrupted Access to the System to its Subscribers. However, from time to time, Subscribers may be unable to Access the System due to conditions beyond Licensor’s control. Such conditions include, but are not limited to: force majeure, acts of God, power outages, and the acts of computer hackers and others acting outside the law. Also, from time to time, Access may be unavailable due to software issues, server downtime, increased Internet traffic or downtime, programming errors, regular maintenance of the system, and other related reasons. In response to any unavailability of the System to its Subscribers, Licensor will take all commercially reasonable steps to ensure Access is restored within a reasonable period of time. The term “commercially reasonable,” as used in these Terms, shall mean reasonable efforts taken in good faith without an unduly or burdensome use or expenditure of time, resources, personnel or money.
Licensor endeavors to provide the highest quality content to its Subscribers. To that end, Licensor reserves the right, in its sole discretion, to change, modify, or discontinue any aspect or feature of the System in whole or in part, including, without limitation, the content, availability, Access and/or the Terms of this Site. Such changes, modifications, additions or deletions will be effective immediately upon notice thereof, which notice may be made by posting such changes on this Site.
Users are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment and Internet service necessary for use of the System.
User expressly agrees to refrain from doing, either personally or through an agent, any of the following “Prohibited Conduct”:
– Transmit, install, upload or otherwise transfer any virus, advertisement, communication, or other item or process to the Site that in any way affects the use, enjoyment or service of the System, or adversely affects Licensor’s computers, servers or databases.
– Capture, download, save, upload, print or otherwise retain information and content available on the System other than what is expressly allowed by these Terms.
– Permit or provide others Access to the System using Your user name and password or otherwise, or the name and password of another authorized User.
– Copy, modify, reverse engineer, disassemble, redistribute, republish, alter, create derivative works from, assign, license, transfer or adapt any of the software, information, text, graphics, source code or HTML code, or other content available on the System.
– Remove or modify any copyright, trademark, legal notices, or other proprietary notations from the content available on the System.
– Transfer the System content to another person; “frame,” “mirror,” “in-line link,” or employ similar navigational technology to the System content; or “deep link” to the System content.
– Violate or attempt to violate Licensor’s security mechanisms, Access any data or server You are not authorized to Access or otherwise breach the security of the Site or corrupt the Site in any way.
– Engage in any other conduct which violates the Copyright Act or other laws of the United States.
– Use any device (such as a “web crawler” or other automatic retrieval mechanism) or other means to harvest information about other Users, the System or Licensor.
– Use the Site to violate a third-party’s intellectual property, publicity or confidentiality rights; upload, download, display, publish, perform, create derivative works from, transmit, or otherwise distribute information or content in violation of a third-party’s intellectual property rights.
– Misrepresent Your identity or personal information when Accessing the System; forge any TCP/IP packet header or any part of the header information in any e-mail so that the e-mail appears to be generated by Licensor.
– Post obscene, harassing, defamatory, filthy, violent, pornographic, abusive, threatening, objectionable or illegal material on the Site; post a communication that advocates or encourages criminal conduct or conduct that may give rise to civil liability.
– Advertise or otherwise solicit funds, goods or services on the Site.
– Provide any commercial hosting service with Access to the System and/or the content on the System.
To ensure that Users of the System do not engage in Prohibited Conduct, Licensor reserves the right to monitor use of the Systems and reserves the right to revoke or deny Access to the System to any person or entity whose use of the System suggests Prohibited Conduct. Access of the materials available at the System beyond that of normal patterns of use that suggests systematic copying of the materials constitutes abuse of the System and will result in revocation or denial of Access to the System. The terms “normal patterns” and “abuse” shall be determined solely by Licensor.
Licensor warrants that the software that allows Users to Access the System (“Software”), if operated as directed, will substantially achieve the functionality described on the Site. LICENSOR PROVIDES NO WARRANTY THAT YOUR HARDWARE, SOFTWARE, TELECOMMUNICATIONS EQUIPMENT AND/OR INTERNET SERVICE IS COMPATIBLE OR SUFFICIENT TO ACCESS THE SYSTEM.
Licensor also warrants that the media containing the Software, if provided by Licensor, is free from material defects on the date the User acquired its license to the System. LICENSOR’S SOLE LIABILITY FOR ANY BREACH OF THIS WARRANTY SHALL BE, IN ITS SOLE AND ABSOLUTE DISCRETION: TO REPAIR OR REPLACE THE NONCONFORMAING PORTIONS OF THE SYSTEM OR IF SUCH REMEDY IS IMPRACTICABLE, TO REFUND THE UNUSED SUBSCRIPTION FEE PAID FOR ACCESS TO THE SYSTEM FOR THE THEN CURRENT TERM, ON A PRO-RATA BASIS. THE USER MUST INFORM LICENSOR OF ANY PROBLEM WITH THE SYSTEM WITHIN THIRTY (30) CALENDAR DAYS OF DISCOVERING THE PROBLEM OR LICENSOR WILL NOT BE OBLIGATED TO HONOR THIS WARRANTY. LICENSOR WILL USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR REPLACE THE SYSTEM PURSUANT TO THE FOREGOING WARRANTY WITHIN THIRTY (30) CALENDAR DAYS OF BEING SO NOTIFIED. IF ANY MODIFICATIONS ARE MADE TO THE SYSTEM BY THE USER DURING THE WARRANTY PERIOD OR IF THE USER VIOLATES THE TERMS OF THIS AGREEMENT, THEN THIS WARRANTY SHALL IMMEDIATELY TERMINATE.
ALTHOUGH LICENSOR HAS ATTEMPTED TO PROVIDE ACCURATE INFORMATION ON THE SYSTEM, IT MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE RELIABILITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THAT INFORMATION AND ASSUMES NO RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS THEREIN.
DISCLAIMERS AND LIMITATION OF LIABILITY.
USER ACCESSES THE SYSTEM AT HIS/HER/ITS OWN RISK. THE SYSTEM IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND (BEYOND THE WARRANTIES SET FORTH ABOVE), EXPRESSED, IMPLIED OR STATUTORY, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS ARE SPECIFICALLY DISCLAIMED. LICENSOR DOES NOT WARRANT ANY PARTICULAR RESULT FROM USE OF THE SYSTEM. LICENSOR DOES NOT WARRANT THAT THE INFORMATION ON THE SYSTEM IS ACCURATE, COMPLETE OR COMPLIES WITH ANY PARTICULAR LAW OR REGULATION, OR THAT THE OPERATION OF AND YOUR ACCESS TO THE SYSTEM WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR COMPLETELY SECURE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) SHALL LICENSOR OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, SHAREHOLDERS, DIRECTORS, OFFICERS, THIRD-PARTY CONTENT PROVIDERS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, LOSS OF PRODUCTIVITY OR CONTRACT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
YOUR USE OF THIS SYSTEM IS AT YOUR SOLE RISK AND ANY CONTENT THAT YOU DOWNLOAD IS DOWNLOADED AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM IN EXCESS OF THE AMOUNT OF THE SUBSCRIPTION FEES SUBSCRIBER PAID TO LICENSOR (THE “FEES”) TO ACCESS THE SYSTEM, AND FOR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OF ANY SUCH CONTENT, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM THE NEGLIGENCE OR AN OMISSION OF LICENSOR, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. LICENSOR IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SYSTEM.
NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSION, OR ADDITIONS TO THESE LIMITED WARRANTIES OR DISCLAIMERS.
LICENSOR DISCLAIMS ALL WARRANTIES, AND SHALL HAVE NO LIABILITY FOR DAMAGES IN EXCESS OF THE FEES, ARISING FROM OR RELATED TO ANY SUPPORT SERVICES FOR YOUR USE OF THE SYSTEM.
THE LAWS OF YOUR JURISDICTION MAY PROHIBIT OR MODIFY THE FOREGOING DISCLAIMERS AND LIMITATIONS ON DAMAGES, AND SUCH DISCLAIMERS OR LIMITATIONS ON DAMAGES MAY NOT APPLY TO YOU.
THIRD-PARTY CONTENT; HYPERLINKS.
You acknowledge that Licensor does not pre-screen third-party materials. Licensor is not the publisher or author of any information on the System that is provided by third-party content providers, and Licensor is not liable for any claims related to such information. Content provided by third parties is for informational purposes only, and Licensor’s use of the content constitutes neither an endorsement nor a recommendation by Licensor of the content. Licensor assumes no responsibility for third-party products or services.
The Site may contain links and references to other third-party websites and materials. Licensor does not assume any responsibility for these websites or materials and provides these links or materials solely for the convenience of Users. Licensor does not endorse or otherwise recommend any of these third-party websites, references, or the products, services, or information offered thereby. Licensor may disable any hyperlink to the System at any time. Licensor has the right but not obligation to monitor third-party websites and hyperlinks to the System.
LICENSOR MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, OF THE ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE INFORMATION PROVIDED BY THIRD PARTIES. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY INFORMATION FOUND ON A LINK LOCATED ON THIS SITE THAT ALLOWS USERS TO ACCESS INFORMATION FOUND ON ANOTHER WEBSITE. ADDITIONALLY, LICENSOR DOES NOT WARRANT THE EXISTENCE OR FUNCTIONALITY OF ANY WEBSITE WHICH CAN BE ACCESSED THROUGH A LINK LOCATED ON THIS SYSTEM.
COPYRIGHTS, TRADEMARKS AND OTHER PROPRIETARY RIGHTS.
Licensor or its third-party content providers shall retain all worldwide rights in the intellectual property in and on the System, including, but not limited to, trademarks, service marks, trade dress, inventions, ideas, trade secrets, the source code, the HTML code, the “look and feel” of the System, its color combinations, layout, and all other graphical elements, and the copyrights in and to its original content. You should assume that everything You read or see on the System is copyrighted, trademarked, or otherwise protected and owned or licensed by Licensor. Except as expressly stated on the System or in these Terms, nothing that You read or see on the System may be copied, reproduced, modified, distributed, transmitted, republished, displayed or performed for commercial use without the prior written consent of Licensor, or as applicable, its third-party content providers, except as provided in these Terms. Nothing in these Terms grants You an express or implied license to use any of Licensor’s intellectual property except as set forth herein.
If You submit any unsolicited intellectual property, idea, copyrightable material, invention, discovery, improvement, trade secret or know-how to Licensor, You may forfeit Your intellectual property rights and moral rights contained in such communication or material.
Where Licensor has created custom Training materials for and provided to You, then You agree that Licensor shall retain and reserve all rights and ownership of the intellectual property of the customer Training materials created by Licensor, unless otherwise agreed to in writing by the parties.
User agrees to defend, indemnify and otherwise hold harmless Licensor and its officers, directors, agents, employees, shareholders, successors and assigns from and against any cause of action or claim, including court costs, expenses and attorney fees, related to or arising from User’s Prohibited Conduct or other improper or illegal use of the System, or breach of these Terms.
SECURITY; AUTHORIZED USE.
Users are prohibited from violating or attempting to violate the security of the System. Licensor has the right but not the obligation to investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators. Licensor may suspend Your Access while it conducts an investigation. Users are required to enter a user name and password to Access the System. To protect against unauthorized Access to Your account, it is recommended that You close the browser when You have finished using the System. You are responsible for maintaining the secrecy of Your user name and password.
You represent and warrant that You are the person on whose behalf You claim to accept these Terms, or, if You are entering into these Terms on behalf of a person or entity, You represent and warrant that You have the power and authority to enter into these Terms and bind the person or entity. You also represent and warrant that You are an adult who is legally able to enter into these Terms.
You may not use the account, user name or password of someone else at any time. You agree to notify Licensor immediately of any unauthorized use or loss of Your account, user name, password and/or credit card information. You also agree to notify Licensor immediately if You are aware of or suspect other unauthorized use of the Site and/or the Site content. Licensor will not be liable for any loss that You incur as a result of someone else using Your user name and password with or without Your knowledge. You may be held liable for any losses incurred by Licensor, its affiliates, officers, directors, employees, consultants, agents or representatives due to someone else’s use of Your account, user name or password.
Licensor will never ask You for Your password. If You need a new user name and/or password, Licensor will generate a new user name and/or password automatically through its computers and send it to Your e-mail or postal address.
By virtue of these Service Terms, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in these Service Terms, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure. For the avoidance of doubt, the Content is considered Confidential Information. Confidential Information does not include information that: (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (b) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to the receiving party by a third-party, without restriction as to use or disclosure; or (d) is information which the receiving party can document was independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Neither party shall disclose any of the other party’s Confidential Information to any third-party or use such Confidential Information for any purpose other than to (i) perform its obligations or exercise its rights under these Service Terms; or (ii) as otherwise required by law. Each party shall use the same measures to protect the Confidential Information of the other party as it uses with respect to its own confidential information of like importance, but in no event shall it use less than reasonable care, including, instructing its employees, vendors, agents, consultants and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. If a party is required to disclose by law Confidential Information of the other party, such party shall use best efforts to give the other party reasonable advance notice of such required disclosure. WhiteHat reserves the right to disclose the terms and conditions of these Service Terms, in confidence, (a) to accountants, banks and financing sources and their advisors for the purpose of securing financing; or (b) in connection with an actual or proposed merger or acquisition or similar transaction. Upon termination or expiration of these Service Terms the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all tangible items containing or consisting of the disclosing party’s Confidential Information.
TERMINATION OF AGREEMENT.
Licensor may terminate Access to the System or cancel subscriptions to the System without notice if it believes that You have breached or may breach any term or condition of this Agreement, or engaged in conduct that Licensor deems inappropriate.
You shall immediately cease use of and properly delete or destroy the Training Materials upon any such termination, cancellation or completion of the applicable subscription term of the Training.
These Terms constitute the entire agreement between Licensor and User regarding the subject matter hereof. Any previous agreement, whether oral or written, between Licensor and User dealing with the subject matter hereof is superseded. Where there is a conflict between a master service agreement in place between You and Licensor (“Master Agreement”), the terms contained in the Master Agreement will take precedence solely relating to the matter for which there was a conflict. These Terms may only be modified or amended in writing. If any portion of these Terms is determined to be unenforceable for any reason, such portion will be deemed severed and the remaining terms and conditions shall continue in full force and effect. Upon User’s breach or threatened breach of these Terms, Licensor may pursue any legal or equitable remedy available, including but not limited to, direct, consequential and punitive damages and injunctive relief. Licensor’s remedies are cumulative and not exclusive. Failure of Licensor to exercise any remedy or enforce any portion of this Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. Licensor makes no representation that the content of the System is appropriate or available for use in all locations. Licensor operates this System from the United States and makes no representation that the System complies with any foreign or international laws. You agree to comply with all applicable local laws, including any international laws, in using this System. You may not assign Your rights or delegate Your duties under these Terms. The parties agree that no third-party is an intended beneficiary of these Terms. The parties consent to exclusive jurisdiction and venue in state and federal courts sitting in and for Santa Clara County, California. Each party reserves the right to seek injunctive relief due to the other party’s actual or threatened breach of the Service Terms. Neither party shall be responsible for any non-performance or delay attributable to any cause beyond its reasonable control (force majeure). You may not assign these Service Terms, or any of Your rights or obligations hereunder, by operation of law or otherwise, without WhiteHat’s prior written consent. Any notice shall be in writing and shall be delivered by hand, confirmed email, or overnight express mail to the party’s corporate headquarters, Attn: Legal Dept.