***IMPORTANT READ CAREFULLY***
COFENSE ASK AN EXPERT
Updated December 12, 2020
THIS COFENSE ASK AN EXPERT AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF COFENSE ASK AN EXPERT PROVIDED BY COFENSE INC., AND/OR ITS AFFILIATES (“COFENSE”) UNLESS YOU (OR THE BUSINESS, GOVERNMENT OR ENTITY YOU REPRESENT) HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH COFENSE GOVERNING COFENSE ASK AN EXPERT. PLEASE READ THIS AGREEMENT CAREFULLY. CLICKING ON THE “YES” OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), DOWNLOADING, INSTALLING, ACCESSING OR USING COFENSE ASK AN EXPERT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS, GOVERNMENT, OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY TO THIS AGREEMENT, AND YOUR ACCEPTANCE OF THIS AGREEMENT WILL BE TREATED AS THE AGREEMENT OF SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE APPLICABLE BUSINESS, GOVERNMENT, OR OTHER ENTITY, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE COFENSE ASK AN EXPERT.
“Authorized Users” means your authorized employees, agents or independent contractors with an assigned unique email address, who (i) may access Cofense Ask an Expert; and/or (ii) receive or send email messages with respect to Cofense Ask an Expert.
“Your Data” means the information submitted or provided by you and your Authorized Users for use with Cofense Ask an Expert.
“Documentation” means the applicable Cofense Ask an Expert (or ancillary product) user manuals provided by Cofense to you (which may be in electronic format), as amended from time to time by Cofense.
“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
“Cofense IP” means all Cofense proprietary materials, including without limitation, products, Cofense Ask an Expert, software, subscriptions, materials, Cofense’s Confidential Information, threat intelligence and threat indicators, intelligence alerts and reports, and/or investigation tools, Aggregate Data, Documentation, proprietary processes and methods, and any Cofense templates and/or forms.
“Cofense Ask an Expert” means the Cofense Ask an Expert product feature, along with any other related materials and Documentation provided by Cofense hereunder. Cofense Ask an Expert includes any application, feature, function or technology that Cofense and/or its affiliates have made available to you that has been designated a pilot, evaluation version, beta release, pre-release, developer preview or similar description.
2. TERM AND TERMINATION. Unless otherwise terminated in accordance with this Section, this Agreement will remain in effect from the earlier of (a) the date this Agreement is accepted by you, or (b) the date in which you first installed or accessed Cofense Ask an Expert until the expiration of your license to Cofense Triage (the “Term”). Either party may terminate this Agreement (i) for material breach, immediately upon written notice to the other party; or (ii) for convenience, upon ten (10) days’ prior written notice. Upon expiration or termination of this Agreement, all licenses granted herein will automatically terminate and you must stop use of Cofense Ask an Expert. If applicable, you understand that Cofense may disable access to Cofense Ask an Expert automatically at the end of Term, without notice to you.
3. GRANT OF LICENSE.
a. Cofense grants to you a limited, nontransferable, non-assignable, non-sublicensable right to use Cofense Ask an Expert during the Term, subject to the terms of this Agreement.
b. Trial “3 for Free”. Cofense grants you the right to send Cofense up to three (3) submissions at no cost for a period of one (1) year from the date in which you first installed or accessed Cofense Ask an Expert (the “Trial Period”). You and Cofense may extend the Trial Period upon mutual written agreement (including via email). Any unused submissions will automatically expire at earlier of 1) the expiration of the Trial Period or 2) the expiration of the Term. Subject to earlier termination, you will discontinue use and/or access to the Cofense Ask an Expert at the expiration of the Trial Period unless and until you have agreed to purchase submissions to Cofense Ask an Expert.
c. If you agree to purchase submissions for Cofense Ask an Expert pursuant to an applicable ordering document acceptable to Cofense, Cofense grants you the right to send Cofense up to ten (10) submissions for Cofense Ask an Expert for a period of one (1) year from the date listed in the applicable ordering document (“Bundle Term”). You may order additional Cofense Ask an Expert submissions (bundle of ten (10) at a time) upon mutual written agreement, and additional orders will be subject to this Agreement. Any unused submissions will automatically expire at the earlier of 1) the Bundle Term or 2) the expiration of the Term.
d. In the event Cofense, in its sole discretion, supplies to you any modification, error correction, bug fix, new release, or other update to Cofense Ask an Expert (collectively, “Update(s)”), such Update will be deemed part of Cofense Ask an Expert hereunder and will be subject to the terms and conditions of this Agreement. Cofense may, at its sole discretion, provide reasonable maintenance and support for Cofense Ask an Expert during the Term.
4. PROPRIETARY RIGHTS.
a. You acknowledge and agree that Cofense and its licensors own all rights, title and interest, in and to Cofense IP. Except for the rights expressly granted in this Agreement, you will acquire no other rights, express or implied, in or to Cofense IP, and all rights not expressly provided to you hereunder are reserved by Cofense and its licensors. You will not, nor permit your Authorized Users or anyone else to, directly or indirectly: (i) copy, modify, rent, lease or distribute Cofense IP, including Cofense Ask an Expert; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of Cofense IP, including the Cofense Ask an Expert (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) use the Cofense IP and Cofense Ask an Expert to help develop any other product or service; and (iv) disclose the results of any benchmark tests on the Cofense IP without Cofense’s prior written consent. You will maintain and not remove or obscure any proprietary notices on the Cofense IP, including Cofense Ask an Expert. Cofense acknowledges that you own all right, title and interest in and to Your Data. Subject to the licenses granted herein, Cofense acquires no right, title or interest from you under this Agreement in or to Your Data.
b. Aggregate Data; Feedback. Cofense owns all Intellectual Property Rights in and to Aggregate Data, and may use, reproduce, sell, publicize or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Your Data that is de-identified (stripped of any information used to identify you or your Authorized Users, including personal data). Aggregate Data will also include statistical information related to the use and performance of Cofense Ask an Expert, provided that such statistical information is de-identified. You grant to Cofense a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and exploit any suggestion, enhancement submission, recommendation, correction or other feedback (“Feedback”) provided by you or your Authorized users relating to Cofense Ask an Expert. Feedback will not include Confidential Information.
c. You acknowledge and understand that in order to use Cofense Ask an Expert, you will be transferring your phishing message or communication (including but not limited to emails, email attachments, headers, the email body) to Cofense. For any phishing message or communication that you or your Authorized User submits to Cofense (including but not limited to emails, email attachments, headers, the email body) you hereby grant Cofense a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, license, including the right to sublicense to third parties, and right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, publish, distribute, sell, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, display, perform, and use and practice such phishing message or communication as well as all modified and derivative works thereof; provided that such phishing message or communication is deidentified (stripped of any information used to identify you or your Authorized Users, including personal data). You further acknowledge, that use of Your Data may involve copying Your Data from Cofense Ask an Expert to a third-party hosting provider platform.
5. DATA PRIVACY. If use of the Cofense Ask an Expert and any ancillary products includes the processing of personal data (as described in Regulation (EU) 2016/679), when performing its obligations under this Agreement, the following will apply:
a. You will ensure that: (i) you are entitled to transfer the relevant personal data to Cofense so that Cofense may lawfully use, process and transfer the personal data on your behalf and in accordance with this Agreement; and (ii) the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws.
b. Cofense will: (i) process personal data in compliance with and subject to this Agreement and any lawful and reasonable instructions received from you; (ii) not use or process or permit any Cofense subcontractors to use or process, any personal data except to the extent necessary to perform its obligations under this Agreement; (iii) implement and maintain adequate and reasonable technical and organizational safeguards designed to protect against the unauthorized or accidental access, loss, alteration, disclosure or destruction of personal data in Cofense’s possession or control; (iv) ensure that it has appropriate procedures in place designed to comply with applicable data protection laws and will take all reasonable steps to ensure that persons employed by it, and other persons engaged at its place of work, are aware of and comply with applicable data privacy laws and regulations.
c. Cofense may process or otherwise transfer personal data in or to any country outside the European Economic Area or any country not deemed adequate by applicable data protection laws to the extent necessary for the provision of Cofense Ask an Expert. If required, Cofense will enter into the EU Standard Contractual Clauses as approved by the European Commission for ensuring an adequate level of data protection in respect of the personal data that will be processed or transferred.
d. You acknowledge and agree that in order to provide Cofense Ask an Expert, Cofense uses the subprocessors listed in the Cofense Resource Center.
e. Notwithstanding anything in the agreement you and Cofense have in place for Cofense Triage, the data and information you provide Cofense using Cofense Ask an Expert will be hosted in the United States. Such data may be transferred to any Cofense location in the provision of our services, including to provide support and troubleshooting.
6. DISCLAIMER. Unless otherwise terminated in accordance with this Section, this Agreement will remain in effect from the earlier of (a) the date this Agreement is accepted by you, or (b) the date in which you first installed or accessed Cofense Ask an Expert until the expiration of your license to Cofense Triage (the “Term”). Either party may terminate this Agreement (i) for material breach, immediately upon written notice to the other party; or (ii) for convenience, upon ten (10) days’ prior written notice. Upon expiration or termination of this Agreement, all licenses granted herein will automatically terminate and you must stop use of Cofense Ask an Expert. If applicable, you understand that Cofense may disable access to Cofense Ask an Expert automatically at the end of Term, without notice to you.
7. CONFIDENTIALITY. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the results of any performance, function or evaluation of Cofense Ask an Expert, will be deemed Confidential Information of Cofense. The Recipient agrees that it will: (i) not use any Confidential Information for any purpose except as set forth herein; (ii) use at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, to prevent the unauthorized use, dissemination of publication of the Confidential Information; (iii) limit disclosure of Confidential Information to those persons within Recipient’s organization who have a need to know and who have previously agreed in writing, prior to receipt of Confidential Information, either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof; and (iv) not disclose any Confidential Information to third parties without the prior written consent of the Discloser. Recipient acknowledges that the disclosure of Confidential Information may cause irreparable injury to the Discloser. Discloser will, therefore, be entitled to seek injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that the Discloser prove irreparable harm and without the posting of a bond. This provision will not in any way limit such other remedies as may be available to the Discloser at law or in equity. Within ten (10) business days of the termination of this Agreement or upon the Discloser’s written submission, the Recipient will (at the Recipient’s election) promptly destroy or return all of Discloser’s Confidential Information in the Recipient’s possession.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL COFENSE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE FOREGOING LIMITATIONS ON COFENSE’S LIABILITY WILL APPLY WHETHER OR NOT COFENSE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF COFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED USD $1000.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. Cofense Ask an Expert and Cofense Triage are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFARS Section 227.7202 and FAR Sections 12.211-12.212, as applicable. Cofense Ask an Expert and Cofense Triage are and were developed solely at private expense and the use of Cofense Ask an Expert and Cofense Triage by the United States Government are governed solely by this Agreement and are prohibited except to the extent expressly permitted by this Agreement.
10. MISCELLANEOUS. You will comply with all applicable laws. You will not assign this Agreement or any right or delegate any performance without Cofense’s prior written consent. This Agreement is the complete statement of the agreement of the parties with regard to the subject matter hereof and may be modified only by a writing signed by both parties. This Agreement is governed by the laws of the State of Virginia, excluding its conflict of law rules and The U.N. Convention on Contracts for the International Sale of Goods. Sections 4 through 10 will survive any termination or expiration of this Agreement.