TERMS OF SERVICES

WARNING! PLEASE READ THIS TERMS OF SERVICES (“TOS”) CAREFULLY. THIS TOS CONTAINS THE LEGAL TERMS AND CONDITIONS RELATED TO THE USE OF THE SERVICES OF THE XS MATRIX SOFTWARE BY THE CUSTOMER (AS DEFINED BELOW) VIA WEB SERVICES (SOFTWARE AS A SERVICE). BY THE ACCEPTANCE OF THIS TOS, A LEGALLY BINDING AGREEMENT IS ESTABLISHED BETWEEN THE CUSTOMER AND XS MATRIX SECURITY SOLUTIONS KFT. (VÁCI ÚT 76., H1133 BUDAPEST, HUNGARY), HEREINAFTER XSMATRIX.

1. Definitions

“Customer” means a company, corporation, organization, or other type of legal entity whatsoever that have entered into this TOS with XSMATRIX regarding the use of the Services;

“End User” means an individual being an employee, contractor, or agent of the Customer, or otherwise carrying out any kind of work activities for the benefit of the Customer on the basis of any kind of legal agreement between the End User and the Customer (including system operators and/or administrators and IT staff members as well), always acting on behalf of the Customer regardless of the termination of their engagement,

“TOS” means this Terms of Services Agreement; “TOS” means this Terms of Services document;

“Software” means the services related to the XS MATRIX “AURA” and “TheFence” software those are accompanied by this TOS (“Software” mean the “AURA” and “TheFence” software product alltogether);

“XSMATRIX” means XS Matrix Security Solutions Kft. (VÁCI ÚT 76., H1133 BUDAPEST, HUNGARY), a limited liability company incorporated and organized in Hungary, operated under Hungarian law, as well as any successor thereof (regardless of whether the successor takes and assumes all rights and obligations and burdens collectively or only some of them individually, and regardless of the legal transaction through which the successor takes these rights / obligations / burdens, e.g. merger, acquisition, demerger, contract, agreement whatsoever).

2. Subscription terms

2.1 Subscription. Subject to this TOS, XSMATRIX grants Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to remotely access (i.e. on a SaaS basis) and/or use the Services in object code form, during the Term (as defined below), solely for Customer’s internal business purposes (the “Subscription”).

2.2 Services. Support and maintenance services are provided according to XSMATRIX’s Service Level Agreement made available at thefence.net/legal/service-level-agreement (“SLA”). The Software, the SLA and any related services provided to Customer altogether shall be referred to as the “Services”.

2.3 Additional Purchases. In the event Customer wishes, and XSMATRIX agrees in writing, to purchase additional Resources (“Additional Resources”), the Additional Resources shall be coterminous in time with the Term, and the initial Subscription Fees for the Additional Resources shall be pro-rated accordingly and invoiced to the Customer.

2.4 Permitted Uses. The Services may be used by the Customer solely for the purposes of review of roles, monitoring and/or risk assessment of the Customer’s own technical and human users’ permissions.

2.5 Permitted Users. The Services may be accessed solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Services (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this TOS at all times; and shall be fully responsible for any breach of this TOS by a Permitted User.

2.6 Prohibited Uses. Except as specifically permitted herein, without the prior written consent of XSMATRIX, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Services (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this TOS with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require XSMATRIX to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Software’s source code or underlying algorithms; (vi) use the Services in a manner that violates or infringes any rights of any third party; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable or otherwise interfere with security-related features of the Services or features that enforce use limitations; (ix) export, make available or use the Services in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Services.

2.7. Excess Usage. XSMATRIX shall, on a monthly basis, review Customer’s average total usage of Resources and whether such usage exceeds the scope set forth in the Order (“Usage Review”). If a Usage Review reveals a rolling 3-month average usage that exceeds 10% the consumption level of the scope specified in the Order, the Subscription Fees will be increased in accordance with the price per Resource specified in the corresponding Order, and XSMATRIX will invoice Customer for the incremental Subscription Fees on a pro rata basis for the remainder of the Subscription Term.

3. Registration to the Services

3.1. Account Registration. In order to use the Services (included, but not limited to the Free Trial and Pre-Released Services), each User shall register and create an account (the “Account”). In the event that a User is the first user of the Services on behalf of a Customer, such User will automatically be considered the Customer’s administrator (the “Administrator”), unless and until such time as such role is transferred to another User of the Customer. The Administrator is considered a representative of the Customer for any and all purposes. The Company reserves the right to refuse a User’s registration or to block User’s access to the Services, at the Company’s discretion.

3.2. Account Information. As part of the registration process, Users may be required to provide the Company with certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. Customer is responsible that each User shall provide the Company with accurate, complete, and updated registration information. Customer shall notify the Company immediately of any breach of security or unauthorized use of an Account. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Services by its Users. Without derogating from the aforementioned, Customer is solely responsible for the content and any activity that occurs in each Account, including without limitation, any activity performed in the Account by Customer’s Users. Customer shall (i) not allow anyone other than Customer’s Users to access and use the Accounts; (ii) keep, and ensure that Users keep all Account login details and passwords secure at all times; (iii) ensure that the login details for each User may only be used by that User, and that multiple people may not share the same login details.

3.3. Administrator Control. The Administrator shall have control over all Accounts and may have the ability to: (i) access information about Users’ activities; and (ii) monitor and manage Users’ Accounts. The Administrator may specify additional Users who will gain Administrator privileges.

3.4. Administrator Responsibility. The Administrator is responsible for the internal management and administration of the Services within the Customer’s Accounts. In addition, the Administrator is responsible for: (i) maintaining the confidentiality of the passwords of the Accounts; (ii) designating those individuals who are authorized to access the Accounts; and (iii) performing monitoring to ensure the protection of Customer’s Users’ privacy and compliance with applicable law.

4. Free Trial; Pre-Released Services.

4.1.  Trial Services. The Company may offer, from time to time, some or all of its services on free trial versions (“Trial Service”). The term of the Trial Service shall be as set forth in the Order Form, unless modified or terminated earlier by either party, for any reason or for no reason. The Company reserves the right to modify, cancel and/or limit this Trial Service at any time and without liability.

4.2.  Pre-released Services. The Company may offer, from time to time, certain services in an alpha or beta versions (the “Pre-Released Services”) and will use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.

4.3.  Governing Terms of Trial Services and Pre-released Services. The Trial Services and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (i) Trial Services and Pre-Released Services are licensed hereunder on as “As-Is” “As Available” basis, with no warranties, express or implied, of any kind; (ii) The indemnity undertakings by us set forth in Section ‎‎16.1 herein shall not apply; and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES), EXCEED US$100. The Company makes no promises that any Trial Service and/or Pre-Released Services will be made available to the Customer and/or generally available.

5. Ownership of the Software and Customer Data 

5.1 The Software is owned by XS MATRIX GLOBAL CO., a company incorporated in the United States of America (State of Delaware) (registered seat: 108 Lakeland Avenue, Delaware 19901, USA; registered under reg. no.: 6383902) and protected by all applicable copyright laws. XSMATRIX hereby warrants that XS MATRIX GLOBAL CO. has authorized XSMATRIX to provide the Subscription, as regulated by this TOS.

5.2 To the maximum extent permitted by applicable laws, XSMATRIX and XS MATRIX GLOBAL CO. reserves all rights to the Software not expressly granted hereunder and to any reproduction of the Software, documentation, logos, trademarks, icons and interface in whole or in part.

5.3 Ownership of Customer Data: Through the use of the services of the Software by the Customer, XSMATRIX may have access to certain data or information submitted or uploaded to or transmitted through the Software, or otherwise provided or made available to XSMATRIX, by or on behalf of Customer (“Customer Data”). As between the Parties, Customer is, and shall be, the sole and exclusive owner of the Customer Data. Customer represents and warrants that to the extent the Customer Data includes any personally identifiable information, Customer has provided all appropriate notices, received the required consents or permits and/or have any and all ongoing legal bases, and has acted in compliance with applicable privacy laws and regulations, as to allow XSMATRIX to use the Customer Data solely in order to use the Services.

6. Availability of, and access to the Services

6.1 The Software is not and will not be physically installed at the Customer’s premises. The Software is installed in the XSMATRIX virtual datacenter infrastructure for the entire duration of the Term.

6.2 During the Account Registration, the Customer will receive from XSMATRIX a unique access code to access the XS MATRIX virtual datacenter infrastructure and use the Services, which unique access code will automatically expire upon termination of the Term.

6.3 It is the Customer’s responsibility and expense to provide the telecommunication connection necessary to access the XSMATRIX server remotely and to provide the client-side hardware and software conditions necessary to use the Services for the entire duration of the Subscription.

6.4 XSMATRIX does not guarantee that XSMATRIX’s own virtual datacenter infrastructure and the Services will be continuously available during the Term, nor that the Services will be available at all specific times during the Term when the Customer wishes to use the Services.

7. Use of the Services

7.1 Based on the Subscription, the Customer may use the Services, in accordance with this TOS, during the Term.

7.2 The Customer is strictly prohibited from using the Services for examining more users than the maximum number of users set forth in this TOS, or for examining more / other Examined Systems than the maximum number of / the type of Examined Systems.

7.3 As a user of the Services, the Customer must keep the given password and other information about the Customer’s Account confidential. The Customer must notify XSMATRIX immediately in writing or by email to hello@thefence.net of any unauthorized use of the Customer’s user account, or loss of the password. The Customer hereby accept all responsibility for any actions carried out under its access details. Customer is solely responsible and liable for the activity that occurs in the Account and for the use of the Services by its End Users. Customer is solely responsible for responding to any claims, requests and demands by the End Users or any other third party related to the Customer.

8. Payment terms

8.1 All Subscription Fees are stated, and are to be paid, in USD; (b) all payments under this TOS are non-refundable, and are without any right of set-off or cancellation; (c) all Subscription Fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the highest amount permitted by applicable law.

8.2 Taxes. Amounts payable under this TOS are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon XSMATRIX’s net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to XSMATRIX, Customer shall promptly notify XSMATRIX in writing and XSMATRIX shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Subscription Fees payable by Customer.

9. Term and termination

9.1 The Subscription is provided for a fixed duration (i.e., the Term).

9.2 The Subscription automatically terminates at the end of the last day of the Term unless the Subscription is renewed or extended.

9.3 XSMATRIX may unilaterally terminate the Subscription (and invalidate the unique access code to the Services respectively) effective immediately, by sending a notice of termination to the Customer, if the Customer or any of its End Users breaches the Subscription terms (See Section 2) of this TOS.

9.4 The Subscription automatically terminates immediately when the Customer ceases to exist regardless of whether or not the Customer has a legal successor.

9.5 Termination for Breach. Each Party may terminate this TOS immediately upon written notice to the other Party if the other Party commits a material breach under this TOS and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).

9.6 Termination for Bankruptcy. Each Party may terminate this TOS upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) the other Party makes a general assignment for the benefit of its creditors; (b) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (c) the other Party is liquidating, dissolving or ceasing normal business operations.

9.7 Survival. Sections 2 (Subscription) Section 3 (Ownership) Section 8 (Warranty and liability) shall survive termination of this TOS, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

10. Warranty and liability

10.1 XSMATRIX warrants to the Customer that the Services shall be available in accordance with the SLA. The Customer’s sole and exclusive remedy and XSMATRIX’s sole liability is that in case of any interruption or error occurs during the Services, XSMATRIX shall repair the defects within a reasonable period of time. All correctional activities shall be performed at XSMATRIX site and, if XSMATRIX cannot do so within a reasonable time, not to exceed 30 days, Customer may terminate this TOS and receive a pro-rata refund of any amounts pre-paid by Customer for the remaining unused period of the Term, as stated by Clause 8.3 below. XSMATRIX shall not be liable for any inaccuracy in the Services output and/or delay and/or unavailability of the Services, caused due to (a) failure of Customer’s Internet access or any public telecommunications network, shortage of adequate power or transportation facilities, (b) any incompatibility between the Customer’s systems and the Services and/or (c) maintenance within the Customer’s systems affecting the operation of the Services.

10.2 XSMATRIX warrants that the Subscription is lawfully provided and any use of the Services by the Customer in accordance with the provisions of this TOS qualifies as lawful activity. XSMATRIX further warrants that the Services are free from any and all rights, claims, and actions of third parties, and of any other encumbrances. XSMATRIX is liable towards the Customer for any breaches of these warranties within the limitations of liability as stated below.

10.3 Limitation of liability: XSMATRIX shall not be liable for any indirect or consequential damages, including without limitation loss of income, loss of business profits or contracts, business interruption, loss of information, loss of opportunity, goodwill, or reputation. XSMATRIX is not liable for the loss of, damage to or corruption of data. XSMATRIX is not liable for any damage or loss of data caused to the Customer’s systems by the malfunction of the Services. XSMATRIX does not guarantee that the Services will be fit for any purpose specified by the Customer. XSMATRIX’s entire liability and the exclusive remedy for any breach of this (limited) Warranty or for any other breach of this TOS or for any other liability relating to the Services shall not exceed the return up to 50% of the up-front fees paid (if any) for the Subscription by the Customer.

10.4 The above limitations of liability do not apply to loss of life, physical injury or damage to health for which XSMATRIX is responsible.

11. Miscellaneous provisions

11.1 This TOS, and any dispute arising out of or in connection with the TOS or its subject matter (including, without limitation, its breach, termination, validity, or interpretation) shall be governed by, and construed in accordance with, Hungarian law.

11.2 For any dispute arising from or in connection with this TOS, so especially for its breach, termination, validity or interpretation, Hungarian regular courts shall have exclusive jurisdiction, and any court ruling, order, judgment, or award rendered or adopted by courts of another country shall be null, void and unenforceable.

11.3 From time to time XSMATRIX retain the right to adapt the TOS to reflect changes. The changes of this TOS are published on the website https://www.thefence.net/, without any notification to the Customers. By the express acceptance declaration, the Customer is accepting this TOS by the version valid at the date of the acceptance, without any changes or modifications. If the Customer does not agree with the terms and conditions of the TOS in a whole or in a part, please do not give the acceptance declaration.

11.4 If any provision of this TOS is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this TOS shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

11.5 Waiver. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given.

11.6 Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this TOS.

11.7 Notices. All notices or other communications provided for in connection with this TOS shall be in writing and shall be given in person, by courier, by email, or by registered or certified mail. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting.

11.8 Export control. The Services are subject to Hungarian, U.S. or foreign export controls, laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Services (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use the Services.

11.9 Confidentiality. Each Party and/or its affiliates (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party and/or its affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information includes, without limitation: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans and opportunities, marketing plans, financial and accounting information, forecasts and valuations, market share data, sales volumes, discounts, and budgets; (b) information relating to actual or potential customers, suppliers, products and services; and (c) technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, architectures, and other technology and intellectual property. Customer acknowledges that the Services embodies Confidential Information of XSMATRIX. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this TOS.

11.10 Entire agreement. These Terms (and the other terms, agreements and policies referenced herein) constitute the entire agreement between Customer and XSMATRIX with respect to Customer’s use of the Services.