Impanix provides access to and use of their Service(s) to individuals or entities who purchase the Service(s) and/or create an Account with them. By using the Service(s), You agree to be bound by these Terms and warrant that You have the legal capacity to enter into this agreement. If You are entering into these Terms on behalf of an entity/company or its group, You must have the requisite authority to bind such entities, company, or its groups to these Terms. If You do not agree to these Terms, You should stop using the Service(s) immediately.
The Service(s) are not to be accessed for monitoring availability, performance, or functionality, or for benchmarking or competitive purposes. Impanix’s competitors are not permitted to access the Service(s) without Impanix’s prior written consent.
In these Terms, You and Impanix will be individually referred to as “Party” and collectively as “Parties”.
- Your Rights. Provided that You comply with these Terms and during the Subscription Term, You shall have a limited, non-exclusive, and revocable right to access and use the Service(s) solely for internal business purposes in accordance with these Terms and the subscription plan outlined in the Order Form.
- Impanix’s Responsibilities. Impanix agrees to: (a) provide You access to the Service(s) in accordance with these Terms, the Documentation, and the Order Form; (b) offer support for the Service(s) in accordance with Impanix’s current standard support policy; and (c) comply with all applicable laws and regulations related to providing the Service(s).
- Updates and Downtime. All enhancements, new features, or updates (“Updates”) to the Service(s) are also subject to these Terms, and we reserve the right to implement Updates at any time. The Service(s) may be temporarily unavailable due to scheduled downtime for maintenance and upgrades, in which case we will make commercially reasonable efforts to notify You in advance.
- Implementation Services. The specifics of any Implementation Services that Impanix must provide, including the timeline and associated fee, will be outlined in an Order Form.
- Audit Services. To clarify, the auditors who perform audit services related to the Service(s) are not considered to be employees, agents, representatives, affiliates, or partners of Impanix in any way. These auditors act independently, and Impanix has no responsibility or control over the manner in which they conduct their audit services. Impanix simply provides an online platform for automated security, risk, and compliance assessment.
- Trial Services. Impanix reserves the right to offer Trial Services for a limited time at its discretion. Any Service data transmitted during the Trial Services will be permanently lost unless You purchase a subscription to the same Services covered by the Trial Services or export the Service data before the end of the Trial Services term.
Regardless of anything stated in these Terms, Impanix denies all liability with respect to Your use of the Trial Services to the maximum extent permitted by law.
- YOUR RESPONSIBILITIES
- Your Account. Access and usage of the Service(s) are limited to the number of individual Users specified in the relevant Order Form, if any, that has been executed between You and Us. Each User must be identified by unique login information (“User Login”), and each User Login should only be used by one individual.
- Acceptable Use. By accepting these Terms, You agree that You will not engage in the following actions with respect to the Service(s): (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, disassemble, reverse engineer, decompile or make the Service(s) available to any third party, except for Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Service(s) or attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (c) use the Service(s) to store or transmit Sensitive Personal Information; (d) use the Service(s) to store or transmit Service Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (e) access the Service(s) for the purposes of creating derivative works based on, or developing or operating products or services for third-parties in competition with the Service(s); (f) access or use the Service(s), or any feature, information or functionality thereof, to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (g) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (h) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; or (i) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service(s) (through use of manual or automated means). You acknowledge and agree that any breach of this provision may result in immediate termination of Your access to the Service(s) without notice, and may subject You to liability for damages and other legal consequences.
- Prohibited Activity. In the event that we notify you that a particular activity or purpose is prohibited due to a potential threat to the security, integrity, or availability of the Service(s), you agree to promptly discontinue such prohibited activity or purpose.
- INTELLECTUAL PROPERTY RIGHTS
- Service(s). Impanix, its Affiliates, and licensors own and retain all intellectual property and proprietary rights, including patents, inventions, copyrights, trademarks, domain names, trade secrets, or know-how related to the Service(s), except for the limited rights explicitly granted to You in clause 1. All other rights in the Service(s) not expressly granted to You are reserved by Impanix.
- Service Data. You retain ownership of the Service Data that you provide to Impanix, and Impanix does not assert any ownership rights over such data. However, you grant Impanix a license and right to use the Service Data solely for the purpose of providing and maintaining the Service(s), addressing any technical issues, or fulfilling support requests made by you, in accordance with these Terms. This license is granted on a royalty-free basis.
- Feedback. Impanix can use any suggestions, enhancement requests, recommendations or other feedback provided by You without any additional cost or compensation. The purpose of this is to improve and enhance the Service(s). However, Impanix cannot reference You in such use without Your permission.
- Aggregated Information. Impanix may collect and analyze information related to the provision, use, and performance of the Service(s), and use such information to develop and improve the Service(s) and other offerings. This may include disclosure of such information to third parties in an aggregated and anonymized format, so that neither You nor any individual or household can be identified.
- THIRD PARTY SERVICES
- The Service(s) allows for integration with various Third-party Services. By using Third-party Services, you agree to their terms and conditions and privacy policies, and acknowledge that Impanix is not responsible for any issues that may arise from your use of those services, including any data processed by those third parties. Impanix is only liable for your data while it is being transmitted through the Service(s). If you encounter any problems with a Third-party Service, you should contact the provider of that service directly.
- If you choose to enable integrations between the Service(s) and Third-party Services, you are authorizing Impanix to share Service Data (including Personal Data, if necessary) with those Third-party Service providers in order to facilitate the integration. You are also granting Impanix permission to allow those Third-party Service providers to access Service Data as needed for the interoperation of their services with the Service(s). Note that Impanix and the Third-party Service providers are not processors or sub-processors of Personal Data with respect to each other.
- CHARGES AND PAYMENT
Subscription Charges associated with Your use of the Service(s) will be specified in an Order Form, and any other details regarding such charges will also be mentioned in the Order Form. Unless otherwise provided in the relevant Order Form, Subscription Charges are due in full and payable in advance upon subscription to the Service(s) in accordance with clause 5.2.
You authorize Us or Our authorized agents to bill You upon Your subscription to the Service(s), and payment is due within thirty (30) days of receipt of Our invoice. All Subscription Charges are non-refundable unless otherwise specified in these Terms or an Order Form.
In the event of late payment or non-payment of Subscription Charges, We will notify You and must receive payment within a maximum of ten (10) days from the date of Our notice. Failure to pay may result in suspension of Your access to and use of the Service(s) or termination of Your Account. We will use commercially reasonable efforts to give You at least five (5) days’ prior written notice before taking such action.
If You reasonably dispute any portion of the invoice, You must notify Impanix within seven (7) days of receipt of the invoice. Impanix will not exercise its rights to suspend or terminate Your access to the Service(s) under clause 5.4 if You are disputing the applicable Subscription Charges in good faith and cooperating diligently to resolve the dispute.
Unless otherwise stated, Subscription Charges do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
- TERM, TERMINATION AND SUSPENSION
Subscription Term and Renewal: Your subscription to the Services will be for a specific Subscription Term mentioned in the relevant Order Form. If you do not terminate your Account and subscription to the Services, your subscription will automatically renew for a new Subscription Term of the same length as the expiring Subscription Term, at the then prevailing Subscription Charges. Impanix will inform you of the renewal at least seven (7) days prior to the expiry of the then expiring Subscription Term.
Termination for Breach: If a Party breaches these Terms and does not cure such breach within thirty (30) days after receiving written notice, the other Party may terminate these Terms immediately upon notice. However, any activity by You or Your Users that threatens the security, integrity, or availability of the Service(s) may lead to immediate termination of Your Account and access to the Service(s).
Termination for Insolvency: If a Party becomes insolvent, makes an assignment for the benefit of creditors, is the subject of voluntary or involuntary bankruptcy proceedings (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property, either Party may terminate these Terms with notice.
Effect of Terminating Your Account: After the termination of Your Account by either You or Impanix, you will no longer be able to access and use the Services. However, termination will not release you from paying all Subscription Charges that accrued before the termination. Impanix will delete all Service Data, including Your login and Account information, within forty-five (45) days from the effective date of termination of Your Account (Data Retention Period), unless legally prohibited. You can request Impanix to export Service Data within the Data Retention Period, but once it is deleted, Service Data cannot be recovered.
CONFIDENTIALITY, DATA PRIVACY AND SECURITY
If you are given a user identification code, login, password or any other confidential information as part of our security procedures, it is your responsibility to treat it as confidential and not disclose it to any third party. Failure to comply with this obligation may result in unauthorized access or loss of data in your account, for which we will not be responsible.
For the purposes of these terms, Confidential Information includes any information labeled as such or which a reasonable person would understand to be confidential, including user identification codes, logins, passwords, and Service Data. Confidential Information does not include information that is publicly known, obtained from a third party without breach of confidentiality, or required by law to be disclosed.
Both parties are obligated to protect the other’s Confidential Information from unauthorized use, access, or disclosure with no less than reasonable care. Each party may only use the other’s Confidential Information for the purposes of these terms and may disclose it only to employees, representatives, and agents who have a need to know and are bound to maintain confidentiality. Impanix and its affiliates may access or disclose information about you or your account, including Service Data, for legal advice or to prevent infringement of proprietary rights, with prior notification to you if it will not harm their interests.
Impanix will implement appropriate security measures to protect Service Data during the subscription term as specified in its security policy. Personal data included in Service Data will only be processed by us as a data processor for the purposes outlined in these terms and in accordance with the Data Processing Addendum.
- WARRANTIES AND DISCLAIMERS
- Impanix Warranties: During the Subscription Term, Impanix guarantees that (a) the overall functionality of the Service(s) will not be materially reduced, and (b) the security policy accurately outlines security measures to protect Service Data.
- Warranty Remedies: You must notify Impanix of any non-conformance of the Service(s) under a warranty within 30 days. If notified within such time, Impanix will make commercially reasonable efforts to correct the non-conformance at no additional cost. If Impanix is unable to correct the non-conforming Service(s) within a reasonable time, you may terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Subscription Charges covering the remainder of the Subscription Term. If you choose to terminate and receive a refund, it will be your sole remedy in case of a breach of the limited warranties above.
- Disclaimers: The Service(s) are provided “as is” and neither party makes any warranty, express, implied, statutory, or otherwise. Each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement, to the extent permitted by law. Impanix does not guarantee that the Service(s) will be error-free, operate without interruption, or that recommendations will be accurate. Impanix does not provide any warranty regarding your use of the Service(s). The Service(s) may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Impanix is not responsible for any delays, delivery failures, or other damages resulting from such problems.
- From time to time, Impanix may offer new “Beta” features or tools for experimentation purposes only, without any warranty of any kind, and may modify or discontinue them at its sole discretion.
- You acknowledge and agree that the Service(s) and any information or recommendations provided by Impanix are intended as recommendations only and do not constitute a warranty or guarantee that following them will fully comply with any applicable standards contemplated by the Service(s). You acknowledge and agree that it is solely your responsibility to ensure compliance with all applicable standards.
- LIMITATION OF LIABILITY
Excluding Certain Types of Damages: Neither party nor its affiliates will be liable for any indirect, exemplary, incidental, special, punitive, cover, business interruption, lost profit, or consequential damages arising out of or related to this agreement, whether the action is in contract or tort, and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose, except to the extent prohibited by law.
Liability Cap: Except for amounts payable under a party’s obligations under clause 10, the aggregate total liability of either party together with its affiliates arising out of or related to these terms will not exceed the total amounts paid by or due from but not yet paid by you under the order form(s) giving rise to such liability in the twelve (12) month period preceding the event giving rise to the liability. This limitation applies whether an action is in contract or tort and regardless of the theory of liability but will not limit your and your affiliates’ payment obligations under clause 5 of these terms.
- Impanix will provide indemnification to You against any Customer Indemnity Claim and will defend You in any such claim. Impanix will cover any damages, attorney fees, and costs that You may be required to pay as a result of the Customer Indemnity Claim, provided that You promptly notify Impanix in writing of the claim, give Impanix sole control of the defense and settlement, and provide reasonable assistance at Impanix’s expense. If Impanix becomes aware of an infringement or misappropriation claim related to the Service(s), it may modify the Service(s), obtain a license for Your continued use of the Service(s), or terminate Your Account with a refund of any prepaid fees covering the remainder of the Subscription Term of the terminated Service(s), at its discretion and at no cost to You. However, the defense and indemnification obligations will not apply if the Customer Indemnity Claim arises from specified circumstances, such as Your breach of these Terms or the use of software, hardware, data, or processes not provided by Impanix.
- You will provide indemnification to Impanix and its Affiliates against any Impanix Indemnity Claim and will defend Impanix in any such claim. You will cover any damages, attorney fees, and costs that Impanix may be required to pay as a result of the Impanix Indemnity Claim, provided that Impanix promptly notifies You in writing of the claim, gives You sole control of the defense and settlement, and provides reasonable assistance at Your expense. The defense and indemnification obligations will not apply if the Impanix Indemnity Claim arises from Impanix’s breach of these Terms, applicable Order Forms, or the Documentation.
- The clause above sets forth the exclusive remedy for the indemnified party against the indemnifying party for the third-party claims described herein.
- GOVERNING LAW AND JURISDICTION
- These Terms will be governed by and interpreted in accordance with the laws of the State of California, United States of America, and any matters, claims, actions, or disputes arising from these Terms shall be exclusively subject to the jurisdiction of the courts in the State of California, United States of America, without giving effect to the principles of conflicts of laws.
- The following is an overview of the key provisions contained in these Terms:
- Entire Agreement and Revisions: These Terms, along with any Order Forms, schedules, and online policies incorporated by reference, constitute the entire agreement between the parties, superseding all prior agreements, written or oral, concerning the subject matter hereof. Any conflict between an Order Form and these Terms will be resolved in favor of the Order Form. The Terms may be amended at any time, with notice given to you.
- Relationship of the Parties: The parties are independent contractors, and these Terms do not create any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between them.
- Export Compliance and Use Restrictions: Both parties represent that they are not on any U.S. government denied-party list. You agree not to use the Service(s) in Russia or any U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria, or Crimea) or in violation of any U.S. export law or regulation.
- Anti-Bribery: Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with these Terms.
- Assignment: Without the prior consent of the other party, neither party may assign all or any part of these Terms or its rights and obligations hereunder to any third party. However, either party may assign these Terms to its Affiliate.
- Force Majeure: Neither party will be considered in breach of these Terms if it is delayed in performing its obligations due to circumstances beyond its reasonable control, such as acts of God, acts of government, acts of terror or civil unrest, technical failures beyond the party’s reasonable control, provided that the party uses reasonable efforts to notify the other party of the delay and resume performance as soon as possible.
- Notices and Consent to Electronic Communications: Impanix may provide notices to you via electronic mail or general notice on the Service(s), and you agree to receive all such notices electronically. Any notice to Impanix must be delivered in writing.
- No Waiver; Severability: The failure of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim. If any provision of these Terms is found to be unlawful, void, or unenforceable, the remaining provisions will remain in full force and effect.
- Survival: Certain provisions of these Terms, such as those related to intellectual property, payment, termination, confidentiality, warranties, limitations of liability, and indemnification, will survive any termination of the agreement between you and Impanix regarding use of the Service(s).
When capitalized in these Terms, the following terms have the meanings specified below, in addition to any other definitions provided elsewhere in the document:
- Account: refers to any accounts or instances that You or someone acting on Your behalf creates to access and use the Service(s).
- Affiliate: refers to an entity that controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means having direct or indirect ownership of more than 50% of the voting interests of the subject entity.
- API: refers to the application programming interfaces that We develop, enable, or license, which allow access to certain functionalities provided by the Service(s).
- Documentation: refers to any written or electronic documentation, images, video, text, or sounds that specify the functionalities of the Service(s) that We provide or make available to You or Your Users through the Service(s) or in some other manner.
- Order Form: refers to any service order form or statement of work that the Parties execute, which references these Terms and specifies subscription information for the Service(s), including details on any Implementation Services, Subscription Charges, payment information, applicable modules, and Subscription Term.
- Personal Data: refers to data relating to a living individual who is or can be identified either from the data itself or from the data in conjunction with other information that is or is likely to be in Impanix’s possession, but does not include information related to Your personnel or representatives who are business contacts of Impanix, where Impanix acts as a data controller of such information.
- Processing/To Process: refers to any operation or set of operations performed on Personal Data, whether automated or not, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, blocking, erasure or destruction.
- Sensitive Personal Information: refers to information related to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person’s sex life or sexual orientation, government IDs, passport numbers, social security numbers, financial information, credit card data, information about an individual’s criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
- Service Data: refers to all electronic data, text, messages, emails, Personal Data, or other materials that You submit to the Service(s) through Your Account in connection with Your use of the Service(s).
- Service(s): refers to Impanix’s proprietary cloud-based platform, which We provide to You over the internet/cloud and which includes: (i) information security and compliance services in the form of a productized and automated consultant; (ii) audit services in relation to system level controls and organization level controls through the auditors registered on the Website; and (iii) any new services that Impanix may introduce as a Service to which You may subscribe to, and any updates, modifications, or improvements thereto, including individually and collectively, Software, the API, and any Documentation.
- Software: refers to software that We provide to You (either by download or through internet access) that allows You to use any functionality in connection with the Service(s).
- Subscription Term: refers to the period during which You have agreed to subscribe to the Service(s) specified in a relevant Order Form.
- Third-party Service(s): refers to third-party application(s) or service(s) that integrate with the Service(s) through APIs or otherwise, which require You to have Your own accounts with such third-party application(s) or service(s) in order to utilize them.