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THIS AGREEMENT IS SUBJECT TO AN ARBITRATION PROVISION

SOTERIA SOFTWARE TERMS AND CONDITIONS

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These terms and conditions apply to Your use of and access to Soteria Software. By using the Software, You are agreeing to be bound by these Terms.

1. Definitions.
  1. "Software" means the Soteria software products listed on the applicable Order including any and all product documentation, manuals, or media regarding or relating to the same. The term Software shall also include any and all updates, patches, or other deliverable provided to You related to the Software not delivered to You pursuant to separate terms and conditions.
  2. “You,” “Your” or “Customer” means the licensee of the Software and any representative, employee or agent of the same.
  3. “Soteria” means Soteria LLC.
2. Permitted Use.
  1. Subject to the Terms and Conditions contained herein and for only so long as you are in compliance with these Terms, You are hereby granted a limited, non-exclusive, non-transferable license to use the Software for Your lawful commercial and business purposes only. (the “License”). The Software is licensed, not sold and this License only provides You rights to use the Software as specifically provided for in this Agreement.
  2. You agree not to modify, adapt or create derivative works based on the Software or work around any technical limitations in the Software.
  3. You will not copy, distribute, lease, rent, license, assign or transfer your rights in the Software or otherwise publish or make the Software available without the express prior written consent of Soteria or as expressly permitted by this Agreement.
  4. You warrant and agree that You will not use the Software in any manner or for any purpose that is unlawful or prohibited by these terms. You may not use the Software in any manner which could harm any third party or in any way infringe upon the rights of a third-party or breach any contract.
  5. You may not assign this License or Your rights hereunder and any attempt to do so is void.
3. License Terms.
  1. Billing. You hereby agree to pay Soteria a license fee pursuant to the applicable Order - the terms of which are incorporated herein by reference (the “License Fee”).
  2. Cancellation. You may cancel Your License at any time without cause by providing written notice to Soteria of Your intent to cancel Your License. Upon receipt of such notice, Your License shall remain valid through the remaining, paid-for time period of Your License provided for in your Order. Upon the expiration of your License term Your License is terminated. You shall uninstall and delete the Software (including, for the avoidance of doubt, all copies thereof utilized by Your users) and any backup copies in your possession.
  3. Termination.
    1. Soteria reserves the right to suspend or terminate your License immediately if You are in breach of these Terms or your Order including but not limited to a failure to timely pay the License Fee. Soteria may terminate your License for any reason or no reason on thirty (30) days' notice. Termination is complete upon receipt of notice of immediate termination or thirty (30) days following receipt of notice of intent to terminate.
    2. If Your License is terminated, Soteria will refund any amount paid for Time Periods subsequent to the termination less any damages and costs incurred by Soteria arising from any breach of these Terms by You.
    3. Upon termination, You must immediately cease use of the Software. Further, within two business days of termination, You must uninstall and delete the Software and any backup copies in Your possession.
  4. Suspension. Publisher may suspend use of the Offering without terminating this Agreement during any period of material breach. Publisher will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.
  5. Term. These Terms are effective until Your License is terminated or the Terms are modified pursuant to Section 14 below. Sections Disclaimer of Warranties, Limitation of Liability, Data Collection, and Dispute Resolution of these Terms shall survive any such termination.
4. Disclaimer of Warranties.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, SOTERIA PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SOTERIA EXPLICITLY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Further, except for those warranties non-excludable by law, neither Soteria nor any employee, representative or agent thereof make any warranties, conditions, representations, guarantees, or terms (express or implied) as to any matter including the performance of the product. No oral or written information or advice given by Soteria or any employee, representative or agent thereof shall create a warranty.

5. Limitation of Liability

Except for any remedies that cannot be excluded or limited by law, Soteria, its affiliates, owners, members, directors, employees, agents, and/or other representatives will not be liable to You for any loss, damages, claims or costs including, but not limited to any indirect, consequential, punitive, exemplary or incidental damages, lost revenue, lost profits, damage from injury to business reputation, business interruption or for claims by a third-party. In any event, Soteria's liability will be limited to the amount paid for the software for the month in which the alleged breach occurred, if any. The above limitation of liability may not be valid in some states. Soteria does not seek to limit any warranty or remedy to any extent not permitted by law.

Intellectual Property.

The Software is protected by copyright, trademark, and other US and foreign laws. Neither the License nor Your use of the Software grants You any right, title, or interest in any intellectual property and You may not use or disclose any such intellectual property except as specifically provided herein or with express written permission from Soteria.

7. Confidentiality.

The commercial terms included on Your Order, including but not limited to the License Fee, are confidential information and shall not be disclosed by You to any third party.

8. Data Collection.

By using the Software, You acknowledge and agree that Soteria may collect and use information about Your files, systems, software, and tenants (“Technical Data”) to support Your use of the Software. The Technical Data may also be used by Soteria and distributed (in aggregated and non-attributable form) to improve the operation and functionality of Soteria's Software, products and service, and for threat detection, threat intelligence, and related analysis. By using the Software, You agree to the collection, use, distribution, transfer, back-up and storage of the Technical Data by Soteria and its service providers. You also agree that Soteria and its service providers may, distribute, transfer, copy, backup and store Your Technical Data in the United States, Europe, or other jurisdictions where data protection standards may be different. Soteria shall not be responsible for the deletion, correction, destruction, damage, or loss of any such data collected. Soteria reserves the right to establish or modify its general practices and limits relating to storage of such data, and/or to delete or destroy any or all such data periodically. Soteria will use commercially reasonable means to protect any Technical Data collected pursuant to this Section.

9. Permission To List You As A Customer.

Unless You direct otherwise, which direction may be given at any time by sending written notice as provided for in Section 15 below, You agree that Soteria may display Your company name and logo (in accordance with any trademark guidelines You provide) as a Soteria customer in a manner that does not suggest Your use or endorsement of any specific Soteria product or service.

10. Processing of Personal Data; GDPR.

To the extent Publisher is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data; GDPR”):

  1. Processor and Controller Roles and Responsibilities.sCustomer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer's instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.
  2. Processing Details. The parties acknowledge and agree that:
    1. the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;
    2. the duration of the processing will be for the duration of the Customer's right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;
    3. the nature and purpose of the processing will be to provide the Offering pursuant to this Agreement;
    4. the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and
    5. the categories of data subjects are Customer's representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.
  3. Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher's role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Publisher will comply with reasonable requests by Customer to assist with Customer's response to such a data subject request. If Publisher receives a request from Customer's data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer's response to such a data subject request.
  4. Use of Subprocessors. Customer consents to Publisher using the subprocessors listed at the applicable Publisher URL or as otherwise communicated to Customer. Publisher remains responsible for its subprocessors' compliance with the obligations herein. Publisher may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Offering without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.
  5. Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
11. Verifying Compliance
  1. Customer must keep records relating to Offerings it and its Affiliates use or distribute. At Publisher's expense, Publisher may verify Customer's and its Affiliates' compliance with this Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party's auditors and/or regulators, of books and records related to this Agreement. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
  2. Upon request, Publisher will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.
12. Force Majeure

Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care.

13. Dispute Resolution.
  1. This Agreement will be governed by and construed in accordance with the substantive laws of the State of South Carolina.
  2. Soteria hopes to never have a dispute with You. However, if You have a concern or dispute regarding the Software or these terms, we request You contact Soteria and provide us with an opportunity to resolve Your issue. However, in any event, You hereby agree to provide Soteria written notice of any dispute prior to initiating any legal action. To the extent any such dispute is not resolved within 30 days of receipt of that notice, You may then initial legal action if necessary.
  3. “Dispute” as used herein shall be interpreted as broad as possible to include any claim or controversy existing between You and Soteria concerning the Software or this Agreement.
  4. To the extent legal action is initiated, You hereby irrevocably agree to and consent to resolve any Dispute through final and binding arbitration pursuant to the American Arbitration Association (AAA) and its rules and filing instructions. The Arbitration shall occur in South Carolina, or any other location Soteria agrees to. Any disagreement as to whether a Dispute is subject to arbitration shall be submitted as part of the arbitration proceeding. Legal costs, attorney's fees, and the fees of expert witnesses may be assessed against any losing Party in the discretion of the arbitration panel. All arbitration proceedings shall be conducted by a panel of three arbitrators. The party initiating the arbitration shall select one arbitrator and the person or persons on the other side of the Dispute shall select a second arbitrator. The two arbitrators shall select the third.
14. Pricing and Payment
  1. If purchased via the Microsoft Marketplace, Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order.
  2. If purchased directly from Soteria, then Soteria will invoice and charge Customer under the applicable direct sales terms.
15. Entire Agreement

These Terms constitute the entire agreement between You and Soteria with respect to the subject matter of these Terms. These Terms supersede and replace any other prior or contemporaneous agreement, or term or condition applicable to the subject matter.

16. Waiver and Severability

Soteria's failure to enforce a provision of these Terms is not a waiver of its right to do so later. If a provision is found by a court of competent jurisdiction to be unenforceable, the remaining provisions of the Terms will remain in full effect and enforceable.

17. Updates and Modification

Soteria reserves the right to modify, amend or update these Terms and Conditions including but not limited to the License Fee (subject to the terms of Paragraph 3(d) above). If Soteria does so, it will notify You of the modification and the modified Terms and Conditions will be effective no less than 30-days following such notice. If you do not agree to any such modification, you may cancel your account. By continuing to use the Software, you agree to be bound by the revised Terms and Conditions.

18. Notice

Any notice required to be given Soteria by this Agreement shall be sent by email to [email protected] and also by certified mail, return receipt requested, to Soteria LLC, Attn: President, 4401 Leeds Avenue, Suite 240, North Charleston, South Carolina 29405.

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