Vyanet Digital Shield
Terms & Conditions
1. Acceptance of Terms.
- Vyanet Operating Group, Inc. (“VOG”) provides its Service (as defined below) and its web site located at www.vyanet.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
- VOG reserves the right, at its sole discretion, to change or modify portions of these TOS at any time. VOG will post changes on its website and will indicate at the top of such page the date these terms were last revised. VOG will also use commercially reasonable efforts to notify you of changes, either through the Services user interface, in an email notification, or other means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS.
2. Description of Service.
The “Service(s)” includes (a) the Site, (b) VOG’s cloud security service and related technologies, (c) any hardware device provided by VOG or related entities (“Device(s)”), (d) all Software (as defined below); (e) the Shield Tester vulnerability test tool located at www.shieldtest.com or any site part of the domain shieldtester.com, and (f) any data and other content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.
3. General Conditions/ Access and Use of the Service.
- Subject to the terms and conditions of this TOS, you may purchase, access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components (excluding the hardware portions of the Devices you have purchased) will remain with and belong exclusively to VOG. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices VOG provides you or publishes in connection with the Service, and you shall promptly notify VOG if you learn of a security breach related to the Service.
- Any software that may be made available by VOG in connection with the Service, including without limitation software embedded in, provided with, or installed on Devices, including any error corrections and bug fixes provided by VOG (collectively, “Software”), contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, VOG hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the Device and object code of any Software solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software; or remove any proprietary notices or labels. You agree not to access the Service by any means other than through the interface that is provided by VOG for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of VOG or any third party is granted to you in connection with the Service.
- You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you deliver, provide or otherwise transmit or store (hereafter “transmit(ting)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. VOG may access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you grant VOG the perpetual right to use your Content free of charge to provide the Service. VOG has the right, but not the obligation, to monitor Content or Your Content. You further agree that VOG may remove or disable any Content uploaded to the Service at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
- You understand that the operation of the Service, including Your Content, may involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to VOG’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. You acknowledge that you bear sole responsibility for backup of Your Content.
- You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
- If you are using the Shield Tester vulnerability test tool, you acknowledge and agree that use of the Shield Tester may involve transmitting potentially harmful code to your computer/network as a test to detect security vulnerabilities, It may also involve port scanning and transmitting a large amount of data which is intended to test service interruption attacks. By doing so in rare cases it could cause service interruption when using the tool. VOG is not responsible for any service interruptions or any captured harmful code or for any actions or repercussions that may occur from use of the Shield Tester.
- You shall pay VOG fees for the Service as set for within the Service or on the Site (“Fees”). You shall be responsible for all taxes associated with Services other than U.S. taxes based on VOG’s net income. If you provide VOG with information regarding your credit card or other payment instrument, you represent and warrant to VOG that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
- During the Term of this Agreement, you hereby authorize VOG to charge the Fees to your credit card on a monthly basis, beginning on the date you order the Services, and continuing every thirty (30) days thereafter until expiration or termination of the Term. VOG will endeavor to promptly ship the Device to you after placing your order. Upon receipt of the Device, you must install your Device and connect to the Service in order to activate the Services (the “Activation Date”). Such Activation Date must be no later within thirty (30) days after ordering the Services. Fees are nonrefundable once paid. No prorated refunds or credits will be provided under any circumstances and you will not receive any refunds for cancellations during a month. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. If payment is not received when due, VOG may immediately and without notice discontinue providing the Services.
- As part of your purchase of the Services, a Device will be shipped to you. After you have paid for the Services for a period of three months, the Device will belong to you. If you cancel the Services within three months after signing up, you will be charged the amount of the Device in full and you hereby agree to pay such amount.
5. Confidentiality; Data.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of VOG includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
6. Representations and Warranties; Disclaimer.
- You represent and warrant to VOG that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your transmitting and other activities (and allow VOG to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and VOG’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older; and (v) you will use the Services only in compliance with all applicable laws and regulations.
- VOG does not offer any warranties with respect to Devices, but will endeavor to pass down any third party manufacturer warranties associated with the Device, if applicable. Such third party warranties may not apply to Devices that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with any provided specifications or instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OF ANY DEVICE SHALL BE THE APPLICABLE MANUFACTURER’S WARRANTY FOR SUCH DEVICE.
- VOG warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VOG or by third-party providers, or because of other causes beyond VOG’s reasonable control, but VOG shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, VOG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DEVICES OR THE SERVICE.
- DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, INCLUDING THE DEVICES, SITE AND CONTENT, AND ANY SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND VOG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT VOG DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE OR THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, SECURITY OR QUALITY AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM VOG OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS. WITHOUT LIMITING THE FOREOGING, VOG DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL PROTECT AGAINST ALL POSSIBLE THREATS (INCLUDING INTENTIONAL MISCONDUCT BY THIRD PARTIES), THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN YOUR COMPUTERS, NETWORKS OR OTHER SYSTEMS CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE. You acknowledge and agree that the Internet is not secure and you assume all risk of loss of data, theft of intellectual property, theft due to malicious code (i.e., programming designed to disrupt or deny operations, gather information that leads to loss of privacy or exploitation, gain unauthorized access to your computer system, etc.) or hacking that may result from your use of the Internet.
- This TOS will commence on the date you accept its term and continue until terminated as set forth herein. You may terminate this TOS at any time by canceling your account and ceasing to use the Services. We may terminate this TOS at any time upon ten days notice to you.
- Upon the expiration or termination of this TOS for any reason: (i) VOG will terminate your access to the Service and will cease the provision of all Service; and (ii) if you have not paid in full for the Device, you will promptly return the Device to VOG pursuant to instructions provided by VOG. Termination of this TOS shall not relieve either party of its respective obligations to the other hereunder that arose prior to the effective date of termination.
8. LIMITATION OF LIABILITY.
- UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL VOG BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM; (C) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (D) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (E) ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
- Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, VOG’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless VOG from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. VOG shall provide notice to you of any such claim, suit or demand. VOG reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting VOG’s defense of such matter.
10. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Devices, Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of VOG, but VOG may assign or transfer this TOS, in whole or in part, without restriction.
12. Governing Law.
This TOS shall be governed by the laws of the State of Oregon without regard to the principles of conflicts of law. Unless otherwise elected by VOG in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Oregon for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit www.vyanet.com to understand how VOG collects and uses personal information.
VOG may use your name and/or company name as a reference for marketing or promotional purposes on VOG’s website and in other communication with existing or potential VOG customers, subject to any reasonable trademark guidelines you may provide.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind VOG in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of VOG to exercise or enforce any right or provision of this TOS shall not be a waiver of that right.