These Terms of Service (the “Terms”) state the terms and conditions under which Ostra Cybersecurity, Inc., a Delaware corporation (“Ostra”), provides its network and cyber security services (the “Services”) to its customers and users. The Services are owned, provided, operated, and maintained by Ostra, its licensors, and its contract technology products and services providers.
Capitalized terms used in these Terms have the specific definitions given to them whenever they are used herein.
Ostra provides the Services to its customers (the “Customers”) pursuant to subscription licenses purchased direct from Ostra or its authorized resellers (a “Reseller”). Customers are required to accept these Terms when registering for and purchasing a license to the services. Once accepted, these terms constitute a legal agreement between Ostra and the Customer enforceable by the parties according all of its terms and conditions.
PLEASE READ THESE TERMS AND CAREFULLY. THE TERMS ARE A LEGALLY BINDING AGREEMENT BETWEEN THE CUSTOMER AND OSTRA GOVERNING ALL SERVICES PROVIDED BY OSTRA TO THE CUSTOMER. BY REGISTERING FOR, OBTAINING, ACCESSING, OR USING THE SERVICES, CUSTOMERS ACCEPT AND AGREE TO THESE TERMS. CUSTOMERS WHO DO NOT AGREE WITH ANY OF THESE TERMS ARE NOT AUTHORIZED TO OBTAIN OR OTHERWISE USE THE SERVICES.
If Customer obtains its license from a Reseller, then the subscription, pricing, payment, taxes, installation, configuration, support, training, or other terms agreed upon with such Reseller shall take precedence over these Terms.
1. The Service. Ostra will provide the Service for Customer’s business use for the term of Customer’s subscription. The subscription term, pricing, and other terms specific to each Customer will be set forth in a service order form provided by Ostra or the Reseller and accepted by such Customer (the “Service Order”). Customers are responsible for ensuring that all employees, agents, consultants, contractors, and other persons who are authorized to access and use the Service on behalf of Customer are aware of and abide by these Terms.
2. Usage Restrictions. Customer and Users shall not do any of the following: (a) attempt to rent, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Service available to any third party except as expressly allowed by these Terms; (b) copy or create any derivative works or improvements based on the Service, either directly or through any third party; (c) attempt to produce a source listing, decompile, disassemble, or otherwise reverse engineer the Service; (d) interfere with or disrupt the performance of the Service for any reason, or attempt to gain unauthorized access to any data using the Service; (e) transmit, transfer, or otherwise provide any software virus, worm, malware, or other malicious computer code using the Service; (f) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights, privacy rights, or other legal rights of any third party; or (g) use the Service to transmit any text, files, materials, photographs, video, or other content that is unlawful, threatening, harassing, profane, tortuous, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, displays sexual acts, is hateful, or that is invasive of another’s privacy or publicity rights.
3. Rights Retained. Ostra and its licensors retain all ownership and intellectual property rights to the Service. Ostra shall own all intellectual property rights in and to any and all software code, logic, technology, ideas, concepts, know-how, methods, and techniques that it conceives, creates, makes, or develops in providing the Service to Customer.
4. Customer Data. Ostra may receive from Customer or have access to (a) sensitive computer systems and network configuration and access information for use in providing the Service, and data, files, and other information for use in detecting, remediating, and preventing data security issues (collectively, the “Customer Data”). Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Customer Data. Ostra shall secure, protect, and maintain the integrity of the Customer Data in its possession or under its control. Customer Data used to address security issues may include personally identifiable information or other sensitive personal information or content (“Personal Information”). Ostra shall use such Personal Information only as necessary to provide the Service, including addressing data security issues . Ostra may retain Customer Data used to address data security issues for ongoing data security efforts provided Ostra permanently removes all Personal Information from such data.
5. Statistical Data. Ostra may monitor Customer’s use of the Service to compile anonymous, statistical, and performance information related to the Service (“Statistical Data”). Ostra will have an unrestricted right to store, analyze, evaluate, and use the Statistical Data for its own internal business purposes, including improving the features, performance, and functionality of the Service. Ostra warrants and agrees that the Statistical Data shall not include any Confidential Information of Customer, any information which identifies or can be attributed to Customer or any User, or any Personal Information.
6. Maintenance; Equipment Costs. Ostra will maintain the functionality of the Service as required to meet the functionality requirements of the Customer’s Service Order for the agreed subscription term. Subject to Customer’s payment of all agreed Service fees, Ostra will bear all cost of hosting, maintaining, and operating the Service, including all of Ostra’s network bandwidth, server computers, and network equipment. Customer will be responsible for all the computer equipment, network, and network bandwidth necessary to meet its internal business needs.
7. Fees and Billing.
7.1 Ostra will provide the Service to Customer for the fees stated in the Service Order. Ostra will bill Customer for the Service as defined in the Service Order, and all invoices will be due and payable in full within 15 days of the invoice date. Any sales, use, value-added, excise, or other taxes which Ostra is required to collect under applicable law will be in addition to the fees.
7.2 Overdue invoices are subject to interest of one percent (1.0%) per month on the outstanding balance, or the maximum permitted by law, whichever is less. Ostra shall be entitled to recover all reasonable expenses incurred in collecting any overdue invoices, including legal fees and court costs. Ostra reserves the right to suspend or terminate Customer’s access to the Service if Customer fails to pay any fees when due.
7.3 Ostra may increase its fees upon renewal of the Customer’s subscription. Notice will be provided in advance of renewal via an updated Service Order.
7.4 The Service Order may include additional billing or payment terms which supplement or amend this Section 7.
8.1 Definition. Ostra and Customer each may have access to or receive certain confidential or proprietary technical, product, financial, and business information of the other party (“Confidential Information”) pursuant to these Terms. Confidential Information is limited to information which is clearly marked “confidential” or “proprietary” in any readable form, or which a person exercising reasonable business judgment would have understood to be confidential or proprietary under the circumstances of the access to or receipt of such information.
8.2 Obligations. Ostra and Customer will hold all Confidential Information of the other party in strict confidence and will only use it to perform their respective obligations and exercise their rights under these Terms. Confidential Information may only be disclosed to employees, agents, consultants, and professional advisors who have a good faith need to know such information for the purposes of these Terms, provided the person receiving the information has a confidentiality obligation to the party receiving the information which is at least as protective of the discloser’s rights as these Terms. The party receiving Confidential Information shall protect and safeguard against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own Confidential Information of a similar nature, and in any event by use of no less than a reasonable degree of care.
8.3 Disclosure to Key Partners. Notwithstanding Section 8.2, Customer acknowledges that Ostra may disclose Confidential Information to its resellers, referral partners, vendors, and service providers who support Ostra in its performance of the Service under these Terms (“Key Partners”), provided any Key Partner receiving such Confidential Information has confidentiality obligations to Ostra that prohibits further disclosure and are at least as protective of Customer’s Confidential Information as these Terms.
8.4 Exceptions. These Terms impose no obligation with respect to information which a receiving party can be establish by legally sufficient evidence: (a) is now or hereafter becomes generally known or available to the public through no act or omission by the receiving party; (b) was known by the receiving party prior to receipt from the discloser and without restriction as to its use or disclosure; (c) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to its use or disclosure; or (d) is independently developed by the receiving party without access to or use of the discloser’s Confidential Information.
8.5 Rights to Confidential Information. Each party retains all intellectual property rights in and to its own Confidential Information.
8.6 Survival. The confidentiality provisions of these Terms shall survive the termination of Customer’s subscription for a period of five (5) years, except that Confidential Information qualifying as a trade secret under applicable law shall be protected under these Terms for as long as it retains such status.
9. Publicity. Ostra and the Customer shall obtain each other’s consent before (a) issuing a press release announcing the parties’ business relationship or entry into these Terms; or (b) publicizing the Parties’ business relationship on its corporate website or in any other manner.
10. Warranties and Disclaimer.
10.1 General. Ostra and Customers who are legal entities, are each duly organized, validly existing, and in good standing under the laws of the respective legal jurisdictions in which they are organized. Each party has full power and authority to execute, deliver, and perform these Terms. The agreement to these Terms and the Service Order have been duly authorized, executed, and delivered by each party and is its legal, valid, and binding obligation in accordance with its terms. Each party’s obligations under these Terms shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency.
10.2 Service Warranty. Ostra warrants to Customer that the Service will perform in substantial compliance with the Service Order and any functional specifications that Ostra provides to Customer pursuant to these Terms. Customer’s sole remedy in the event Ostra breaches this warranty shall be: (a) Ostra’s correction of the Service functionality that breaches the warranty; or (b) the refund of the fees charged for the Service for the time period that such Services were in breach of the warranty.
10.3 Disclaimer. EXCEPT AS STATED IN SECTION 10.2, THE SERVICE IS PROVIDED “AS IS.” OSTRA DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION, OR QUALITY OF THE SERVICE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADEPRACTICE.
11. Term and Termination.
11.1 Term. The Customer’s subscription shall be for one (1) year from the date Customer registers for the Service unless the initial Service Order provides otherwise. The Customer’s subscription shall automatically renew for additional one (1) year terms unless one of the parties notifies the other of its election to terminate the subscription at least 60 days before the expiration of the subscription term.
11.2 Termination for Breach. A party may terminate the Customer’s subscription if the other party is in material breach of these Terms and has not cured the breach within thirty (30) days of receipt of a notice from the other party specifying the breach. Consent to extend the cure period for an additional 30 days shall not be unreasonably withheld, provided the breaching party is making diligent, good faith efforts to cure the breach.
11.3 Termination without Cause. Either party may terminate the Customer’s subscription without cause by providing written notice within 60 days of termination. All fees will be due and payable upon standard payment terms for services rendered up to termination date.
11.4 Suspension of Service. Ostra has an unrestricted right to immediately suspend the Service without prior notice to Customer if Ostra has reasonable grounds for believing any User has violated the usage restrictions stated in these Terms. Ostra will notify Customer promptly after taking such action.
11.5 Disposition of Customer Data. All Customer Data provided to Ostra by Customer will be permanently deleted from Ostra’s physical or electronic records within 30 days after termination of Customer’s subscription for any reason.
11.6 Effect of Termination. Customer’s rights to access and use the Service will cease upon termination of the subscription by either party. Upon early termination, Customer will not be relieved from the obligation to pay any fees due to Ostra which accrued before the termination date.
12.1 Ostra shall indemnify, defend, and hold harmless Customer its officers, directors, employees, agents, successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs (collectively, “Losses”) incurred by a Customer Indemnitee arising out of or relating to any claim, legal action, demand, arbitration, audit, litigation, citation, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) brought by a third party (other than an affiliate of the Customer Indemnitee)alleging:
(a) Facts that, if true, would constitute a breach by Ostra of any of its representations and warranties stated in Section 10 of these Terms; and
(b) That Customer’s use of Service pursuant to these terms infringes the copyright, U.S. Patent, trade secret, or trademark rights of such third party.
12.2 Ostra’s indemnification obligations under Section 12.1 do not apply to any Action or Losses arising out of or relating to:
(a) Any modification of the Service made by Customer or anyone other than Ostra, or made without Ostra’s express written approval; or
(b) Any misuse, abuse, or misapplication of the Service by or on behalf of Customer, a User, or a third party.
12.3 Customer shall indemnify, defend, and hold harmless Ostra its officers, directors, employees, agents, successors, and permitted assigns (each, an “Ostra Indemnitee”) from and against any and all Losses incurred by an Ostra Indemnitee in connection with any Action brought by a third party (other than an affiliate of an Ostra Indemnitee) based on any allegation of or relating to:
(a) Any technology, products, network or computer equipment, systems or procedures, or services of the Customer or any third that are not provided by Ostra as part of the Service;
(b) Ostra’s use of the Customer Data in compliance with and pursuant to the terms of these Terms; and
(c) Any facts that, if true, would constitute a breach by Customer of any of its representations and warranties stated in Section 10.
12.4 The parties shall indemnify each other pursuant to this Section 12 provided that:
(a) The indemnitee notifies the indemnifying party promptly in writing of the Action;
(b) The indemnifying party has control of the defense and all related settlement negotiations with respect to the Action, provided that, (i) the indemnitee has the right to participate in the defense of any such Action through counsel of its own choosing, and that (ii) all settlements made by the indemnifying party include a full release of all claims against and obligations of the indemnitee related to the Action; and (c) the indemnitee cooperates fully to the extent necessary, and executes all documents necessary for the defense of any such Action.
12.5 THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OSTRA’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability. Except for liability for breaches of the intellectual property rights and confidentiality provisions of these Terms, and the parties’ indemnification obligations:
13.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, HOWEVER THE DAMAGES ARISE, WHETHER BASED ON CONTRACT, TORT, STATUTE, OR OTHER LEGAL RIGHT, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
13.2 THE AGGREGATE LIABILITY OF THE PARTIES TO EACH OTHER FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL RIGHT, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING BY CUSTOMER FOR THE MOST RECENT ONE (1) YEAR OF CUSTOMER’S SUBSCRIPTION TO THE SERVICE.
14.1 Entire Agreement; Conflicts. These Terms and the Service Order between Ostra and Customer, if any, represent their entire agreement concerning Customer’s subscription for the Service. These supersedes all prior and contemporaneous oral or written terms, conditions, representations, warranties, and agreements by or between Ostra and Customer regarding its subject matter. The Service usage restrictions, intellectual property rights, confidentiality, publicity, warranty, indemnification, limitations of liability, and the general provisions of this section shall take precedence over any different or conflicting terms of any agreement between the Customer and a Reseller regarding the Service.
14.2 Independent Contractors. Ostra and Customer are independent contractors for all purposes. These Terms are not intended to create an agency, partnership, franchise, or joint venture relationship between Ostra and any Customer. Neither Ostra or Customer shall have the express or implied authority to legally bind or obligate the other party in any matter. The business relationship Ostra and Customer is non-exclusive.
14.3 Notices. All notices permitted or required under these Terms shall be deemed given on the date of personal delivery or five (5) days after mailing by first class, certified United States mail, with postage fully prepaid, and a return receipt requested. Personal delivery via a nationally-recognized courier will be valid upon delivery provided the courier obtains a signed receipt. Notice by email is valid upon acknowledgement of receipt by the intended recipient or such person’s authorized representative by email or another means providing a written record of the acknowledgment. Notices to Ostra shall be sent using the contact information at the end of these Terms. Ostra shall send any required notices to the most recent street or email addresses provided by Customer.
14.4 Governing Law and Jurisdiction. These terms are governed by Minnesota law and controlling U.S. federal law without regard to the choice of law provisions of any jurisdiction. Any actions at law or equity under these Terms shall be filed exclusively in the state or federal courts located in Hennepin County, Minnesota. Ostra and Customer irrevocably and unconditionally consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
14.5 Assignment. Neither Ostra nor Customer may assign or otherwise transfer their rights and obligations under these Terms without the other party’s prior written consent, except that either party may assign these Terms and Customer’s subscription for the Service as part of the sale of substantially all its assets to another entity, or a merger, business sale, or reorganization which results in a change in management control. Either party may withhold its consent to an assignment by the other party if the proposed assignee is an actual competitor of the assigning party. Any prospective assignee must be able to fulfill all of the assignor’s obligations under these Terms. Subject to the foregoing, any requested consents to assignment shall not unreasonably delayed or conditioned.
14.6 Binding Effect. These Terms are binding upon, and inure to the benefit of, the parties and their permitted respective successors and assigns.
14.7 Waiver. Any express waiver or failure to exercise promptly any right under these Terms will not create a continuing waiver or any expectation of non-enforcement.
14.8 Severability. If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.
14.9 Force Majeure. A party shall not be in default or otherwise liable for any delay in or failure of its performance under these Terms where such delay or failure arises by reason of any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or cause or random event beyond the reasonable control of such party (an “Intervening Cause”). Ostra and Customer acknowledge and agree that the COVID 19 pandemic does not constitute an Intervening Cause.
14.10 Survival. The terms and conditions of these Terms which by their nature are intended to survive its termination, shall survive such termination.
14.11 Electronic Signatures. Customer’s signature or other affirmative indication of acceptance of these Terms made and delivered in electronic form only shall have the same effect and create the same binding legal obligation as a signature made and delivered in hard copy form.
15. Contact Information. Notices concerning these Terms and Customer’s subscription and any related matters may be sent to Ostra at the following street or email address:
Ostra Cybersecurity, Inc.
6101 Baker Rd, Suite 202
Minneapolis, MN 55345
Copyright © 2021. Ostra Cybersecurity, Inc. All rights reserved.
Last revised: December 23, 2021.