TERMS AND CONDITIONS - TRIAL BASIS SERVICES
BY USING GEARBOX™ AND ASSOCIATED CLOUD SERVICES, YOU ARE HEREBY AGREEING TO THE FOLLOWING TERMS AND CONDITIONS AND ANY TERMS INCORPORATED HEREIN BY SPECIFIC REFERENCE (COLLECTIVELY, REFERRED TO AS THE ‘TERMS’).
‘You’, ‘Your’, ‘Customer’, 'Company', ‘Purchaser’ or ‘End-user’ means an individual or a single entity, corporate or other statutory body with legal personality that uses the Service (as defined below).
‘Terms and Conditions’ or ‘Terms’ mean the terms per this Agreement.
‘Service’ means the equipment, service or software offered by IPG, including all the tools and functionality accessed via the interface or via an API.
‘Service Infrastructure’ means all the IPG systems that facilitate, provide or describe the ‘Service’.
‘Network or Networks’ means groups of devices, systems or computers that are on the same numerical network or domain.
‘Environment’ means System or Devices under testing. This includes sub-components to the System on customer premise and all sub- components.
‘Purchaser’ means party that buys, leases or rents the Service Infrastructure.
‘Scans’ means best effort activity to discover information about Networks and connected Devices. Scans may include but are not limited to port scanning, port connections and other Network and Device interrogation.
‘Trial Basis Services’ means Services delivered under “test”, “pilot”, “beta", "demo" or “client evaluation” purposes.
‘Web Security Scans’ means the crawling of a website to perform testing of forms, application responses, or to confirm the existence of certain files.
‘Device’ or 'Devices' means computerized hardware. This may include computers, input/output equipment, electronic control devices, sensors or software installed on such Devices.
‘Hostnames’ means the name used to identify each individual Device.
‘URLs’ is the address of a web site.
‘IPs’ or 'IP Addresses' refers to the address of a Device.
‘IPG or IPG Parties’ means IPG and its parents, subsidiaries, shareholders, directors, officers, employees, licensors, suppliers and agents.
‘Support’ means the furnishing of technical assistance and remedies, provided on a best effort basis, via any means chosen by IPG.
‘Confidential Information’ means any information disclosed by one party to another which is defined as confidential and proprietary per the Terms and Conditions.
‘Intellectual Property Rights’ means any and all intellectual property rights including patents, trademarks, design rights, copyrights, copyright registration, database rights, know-how and trade secrets and all rights of an equivalent nature anywhere in the world, works of authorship, discoveries, designs, developments, improvements, inventions created, conceived, or reduced to practice by Customer or any of its affiliates, arising from, related to, or otherwise concerning the Service or Customer’s use of or access to the Service and all rights under any license or other agreement or arrangement with respect to the foregoing shall be solely owned and shall be the exclusive property of Infrastructure Proving Grounds.
2. INELIGIBLE PARTIES
To the extent permissible by law, You are ineligible for Trial Basis Services or to subscribe to the Terms and Conditions if (a) You or Your employees have been convicted for any computer or Internet related crimes; or (b) if You are more than sixty (60) days overdue on any monies or amounts owed to IPG; or (c) if You are a competitor of IPG; or (d) if You are located in a region that is prohibited from using the Service by law; or (e) if You have already previously been refused the Service by IPG in the past. Provided that in any case, IPG reserves the right to refuse access to any potential Trial Basis Services user or Purchaser to the Service should IPG, in its absolute discretion, deem such refusal necessary.
3. YOUR IDENTITY AND AUTHORITY
You agree to provide current, accurate information in all electronic or hardcopy registration forms submitted in connection with the Service. You agree not to impersonate or in any way misrepresent Your affiliation or authority to act on behalf of any person, company or other entity. By using Trial Basis Services, all Your personnel and contractors using the Service or accepting these Terms, certify that they are authorized to act on Your behalf and are authorized by You as a representative of an individual, business or other legal entity having contractual usage rights granted by an ISP or Web Host, owning or licensed to use any and all IPs and the associated Devices to which You direct the Service to be performed. You agree to cooperate with IPG within reasonable measures to verify the identity and authority of persons using or testing the Service.
4. PROHIBITED USES
A. Scanning of Third-Party Devices - You must never use or direct the Service to interact with IPs or Devices for which You are not expressly authorized to do so. You must not use, demo or test the Service in such a way as to create unreasonable load on Networks or Devices to which You have directed the Service to interact. You may not use any Service Infrastructure, directly or indirectly to initiate, propagate, participate, direct or attempt any attack, hack, or send bandwidth saturation, malicious or potentially damaging to any Environment.
B. Unlawful Activities - You must not use the Service to perform any unlawful activity including but not limited to computer crime, transmission or storage of illegal content, electronic ransom, service interruption, redirection or content or software in violation of intellectual property and copyright laws.
D. No Export Clause: Products and services from Infrastructure Proving Grounds, Inc. are not approved for sale, Trial Basis Services, testing, use or operations outside the United States or its territories. Scanning or monitoring networks or devices outside the United States and its territories is strictly prohibited.
Support for a demonstration or testing will be available through your designated Trial Basis Services Point of Contact.
6. DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED ''AS IS.'' IPG DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. FURTHERMORE, IPG DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR ANY DOCUMENTATION PROVIDED THEREWITH IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IPG PARTIES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. IPG PARTIES DO NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY OTHER REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, RELATED TO THE SERVICE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT (OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE) WITH REGARD TO THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IPG PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS SERVICE AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF IPG PARTIES, AND EVEN IF IPG PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. COPYRIGHT AND INTELLECTUAL PROPERTY
These Terms do not convey to the user an interest in or to the Service, but only a limited right of use revocable in accordance with the Terms of this Agreement. No license or other right in or to the Service is being granted to the Purchaser. The Purchaser hereby agrees to abide by all applicable laws and international treaties, and undertakes to inform IPG of any suspected breach of Intellectual Property Rights belonging to IPG Parties.
You agree that IPG may collect and use technical information which You provide or which is acquired by IPG as part of Your use of the Trial Basis Services. Each party shall comply with its respective obligations under applicable data protection laws (“DPL”). You agree that IPG may refer to the name of Your corporation as one of its Trial Basis Services users, both internally and in externally published media. Customer hereby acknowledges that IPG has an exclusive, irrevocable, worldwide, perpetual, royalty-free license and right to access, use, reproduce, distribute, display, assign, sell, create derivative works from, and sublicense any and all information or data, without limitation, input into or contained in either the Software or a database used in connection with the Service Infrastructure for any purpose, including (without limitation):
(i) use in comparability databases;
(ii) studying, organizing, analyzing, and/or testing the Data and publishing the results in journals;
(iii) establishing security and management protocols; and
(iv) collecting, modifying, compiling, processing, analyzing, disseminating, reporting, manipulating, or otherwise using the Data in such manner as IPG, in its sole discretion, may deem appropriate from time to time; provided, however, that any such use shall be conducted in accordance with applicable law and in such a manner as to prevent the identification of Customer, the Customer Facilities, or any of Customer’s clients by any party other than Customer, its affiliates, respective employees, agents, and contractors.
You acknowledge that the Service and certain other materials are confidential as provided herein. IPG Parties’ confidential information includes any and all information related to the Service and/or business of IPG Parties that is treated as confidential or secret by IPG Parties (that is, it is the subject of efforts by IPG Parties, as applicable, that are reasonable under the circumstances to maintain its secrecy), including, without limitation: a. The Service; b. Any and all other information which is disclosed by IPG to You orally, electronically, visually, or in a document or other tangible form which is either identified as or should be reasonably understood to be confidential and/or proprietary; and, c. Any notes, extracts, analysis, or materials prepared by You which are copies of or derivative works of IPG Parties’ confidential information from which the substance of said information can be inferred or otherwise understood (the “Confidential Information”). During the course of delivery of Support, it will be necessary for confidential information to be exchanged between You and IPG. The Recipient may use such confidential information only for the purposes for which it was provided, and may disclose it only to employees, or contractors or partners, obligated to the Recipient under similar confidentiality restrictions and only for the purposes it was provided. Confidential information shall not include information which the Recipient can clearly establish by written evidence: a. Is already lawfully known to or independently developed by the Recipient without access to the confidential information; b. Is disclosed in non-confidential published materials; c. Is generally known to the public; or d. Is rightfully obtained from any third party without any obligation of confidentiality. The Recipient agrees not to disclose confidential information to any third party and will protect and treat all confidential information with the highest degree of care. Except as otherwise expressly provided in these Terms and Conditions, the Recipient will not use or make any copies of confidential information, in whole or in part, without the prior written authorization of the other party. The Recipient may disclose confidential information if required by statute, regulation, or order of a court of competent jurisdiction, provided that the Recipient provides the other party with prior notice, discloses only the minimum confidential information required to be disclosed, and cooperates with the other party in taking appropriate protective measures. These obligations shall continue to survive indefinitely following the termination of these Terms with respect to confidential information. IPG Parties will not be obliged to respect Your confidential information in the case of termination due to Your breach of the Terms and Conditions, insofar as such information is required for IPG Parties to safeguard their own rights and interests.
10. CHANGES IN SERVICE
You acknowledge and agree that IPG may, in its sole and absolute discretion, modify or remove the Trial Basis Service as necessary. Scans, verification and authentications performed by the Service may also be modified, removed or updated by IPG at any time without notice.
You hereby acknowledge that the Trial Basis Service will be used only for demonstration and testing purposes. Any Scans performed under Trial Basis Services may not be used for customer deliverables or on production networks.
12. SUSPENSION OR CANCELLATION OF ACCOUNTS OR SCANS
IPG reserves the right to suspend or cancel the Trial Basis Service being given to You, at any stage, should it in its sole discretion, deem such suspension necessary including but not limited to: violation of the Terms and Conditions, non-payment, suspicious or illegal acts or use of Services for malicious intent, if Customer becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, pursuant to the receipt of a subpoena, court order or other request by a law enforcement agency.
13. STORAGE OF SCAN DATA
IPG is not required to, but may, retain all stored data originating from Scans performed during the Trial Basis Services.
14. TRIAL BASIS SERVICES
In certain circumstances and at the sole discretion of IPG, Services may be delivered under “test”, “pilot”, “beta” or “client evaluation” purposes, hereinafter referred to as “Trial Basis Services”. Parties agree that “Trial Basis Services” will be provided at no cost, at Your own risk, without warranty of any kind, “AS IS”, without any guarantees on the storage period of the data and or reports of the “Trial Basis Services” and subject to confidentiality as outlined in these Terms and Conditions. You are obliged to provide truthful, accurate and complete feedback on the Trial Basis Service, with no expectation of remuneration, and You agree to waive any claims for royalties or any other forms of remuneration, with IPG on any use made by IPG of the feedback provided, in whatever form. You agree to use the Trial Basis Services in accordance with these Terms and Conditions and time frame described. All Devices and Services must be returned to IPG undamaged and in working condition. Failure to return the Device or Services after expiration of the Term specified will result in recurring charges at the Monthly Rental Rate which is subject to IPG Terms and Conditions. The current version of the Terms and Conditions are available at: https://www.iotgearbox.com/documentation/terms/
15. THIRD-PARTY PROGRAMS
Customer may receive access to third-party programs which may be bundled with the Trial Basis Service. These third-party software programs are governed by their own license terms, which may include open source or free software licenses, and those terms will prevail over this Agreement as to Customer’s use of the third-party programs. Nothing in this Agreement limits Customer or its users’ rights under, or grants Customer or its users rights that supersede, the terms of any such third-party program.
You represent and warrant that, neither You nor anyone acting on Your behalf has not and will not violate any applicable anti-corruption law, including but not limited to: The US Foreign Corrupt Practices Act. You further represent and warrant that neither you nor anyone acting on your behalf has or will directly or indirectly through any other person or entity, offer, pay, give, promise, solicit or authorize the payment of any money, gift or anything of value to any government official (which includes any officer, employee or person acting in an official capacity for (1)any government department, agency or instrumentality, (2) any state-owned or state controlled company (3) any public international organization, (4) any political party, party official, or candidate for political office, and (5) any agent or intermediary of any of the foregoing) (“Government Official”) or any other person while knowing or having reason to know that all or a portion of such money, gift, or thing of value will be offered, paid, or given directly or indirectly to any Government Official for the purpose of (1) improperly influencing any act or decision of the Government Official in his or her official capacity, (2) improperly inducing the Government Official to perform or not perform any act that violates the lawful duty of such official, or (3) securing an improper advantage, or (4) improperly inducing the Government Official to use his or her influence to affect or influence any act or decision of a government or or instrumentality in order to assist IPG or any of its affiliates in obtaining or retaining business. You agree that if You learn of or suspect any such payment, promise, transfer or offer, in connection with any Activity, You will immediately disclose it in writing to IPG.
You agree to indemnify, defend, and hold IPG Parties harmless from any claim, loss, demand, or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of Your breach of any provision of these Terms, Your negligent or wrongful acts, and/or Your violation of any applicable laws.
18. LIMITATION OF LIABILITY
IPG will have no liability to You for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise): loss of revenue; loss of actual or anticipated profits; loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage or to corruption of data or any indirect or consequential loss or damage howsoever caused, whether under theory of contract, tort (including negligence) strict liability, or otherwise related to these Terms and Conditions. Notwithstanding any damages that You might incur for any reason whatsoever (including, without limitation, all damages referred to above and all direct or general damages), the entire liability of IPG Parties under any provision of these Terms and Conditions and Your exclusive remedy for all of the foregoing, shall be limited to U.S.$5.00. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
19. ENTIRE AGREEMENT
These Terms and Conditions are the entire agreement between You and IPG relating to the Trial Basis Services. This supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by these Terms. In addition, these Terms set out shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of Yours. If these Terms and Conditions are translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control. These Terms and Conditions: (i) May not be assigned by You. Any purported assignment will be null and void; (ii) May not be amended by You, but IPG may amend the Terms and Conditions from time to time and shall incorporate any amended Terms in the latest current version of the Terms and Conditions (iii) Constitutes the entire understanding between the parties with respect to the subject matter of these Terms and supersedes all written and oral prior agreements, negotiations and discussions between the parties relating to it; and; (iv) Is for the sole benefit of IPG and You and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If any part of any provision of these Terms is found to be illegal, invalid or unenforceable, that provision shall apply with the minimum modification necessary to make it legal, valid and enforceable, and all other terms shall remain in force. Paragraph headings are for convenience and shall have no effect or interpretation.
21. GOVERNING LAW
These Terms shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law provisions thereto. You submit to the jurisdiction of San Jose, California, in any action or proceeding arising out of or relating to these Terms and agree that all claims in respect of the action or proceeding may be heard and determined in any such court. There shall be no class action, arbitration or litigation pursuant to these Terms and Conditions. IPG may seek injunctive relief in any venue of its choosing. You hereby submit to personal jurisdiction in such courts.
22. EQUITABLE RELIEF
It is agreed that because of the proprietary nature of the Service, IPG Parties’ remedies at law for a breach by You of its obligations under these Terms will be inadequate and that IPG Parties shall, in the event of such breach, be entitled to, in addition to any other remedy available to it, equitable relief, including injunctive relief, without the posting of any bond and in addition to all other remedies provided under these Terms or available by law.
23. NO WAIVER OR DELAY
The delay or failure of IPG to exercise any right provided in this agreement shall not be deemed a waiver of such right. Any express waiver, delay or failure by IPG to exercise promptly any right under this agreement due to it will not create a continuing waiver or any expectation of non-enforcement.
24. FORCE MAJEURE
A party is not liable under these Terms and Conditions for non-performance caused by events or conditions beyond that party’s control if that party makes reasonable efforts to perform. This provision does not relieve You of Your obligation to make all payments due outside of the Trial Basis Services.
25. ELECTRONIC ACCEPTANCE
By accepting the attached Trial Basis Services Estimate, Customer agrees:
An electronic Agreement shall for all legal purposes be considered a “writing;” any name or symbol of Customer affixed to or contained in the electronic agreement shall be deemed to be the Customer’s valid signature expressing its intent to be bound; any electronic Agreement shall be deemed to comply with any applicable state law governing electronic signatures, electronic writings and/or electronic records; any electronic Agreement printed from files or records (including electronic files) obtained in a normal course of business shall be deemed an original and the admissibility thereof shall not be contested under any applicable best evidence rule or otherwise. Customer is solely responsible for taking all proper security and other procedures necessary to ensure that all transmissions of the electronic Agreements are authorized and correct. Infrastructure Proving Grounds, Inc. is not responsible for any incorrect information contained in an electronic Agreement (including, without limitation, any failure to receive an electronic Agreement), and Customer is bound by any electronic Agreement received by Infrastructure Proving Grounds, Inc..