Customer Agreement

Our license agreement explaining terms under which we grant you access to use Enclave

Customer Agreement

Effective starting January 01, 2019

This customer agreement (“Agreement”) is a legal agreement between you and Westgate Cyber Security Limited, a limited liability company (08181759) incorporated in the United Kingdom (“Westgate Cyber Security”, “our”, “we” or “us”), a British company (together the “parties” and each a “party”).

If you are agreeing to this Agreement not as an individual but on behalf of your company, then a reference to “you” or “Customer” in this Agreement is a reference to the company, and the company will be bound by this Agreement.

We may revise this Agreement from time to time. Where any changes materially affect your rights under this Agreement, we will attempt to provide reasonable notice. You acknowledge and agree that your continued usage of any Products and Services constitutes acceptance of this Agreement as amended.

By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order or when subscribing for one of our services, or by using or accessing our Products, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you must immediately uninstall or cease using the Products and Services.

Grant and Scope of Agreement

Scope

This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement also includes our Privacy Policy, our Acceptable Use Policy, any Orders, and any other referenced policies and attachments. It also governs any usage of our Products and Services under a free trial license.

For the absence of doubt, this Agreement governs your use of or reliance on all and any products and services supplied by us, including but not limited to:

  1. our commercially available downloadable software products (“Software”);

  2. our cloud services, (together with any related documentation, the “Products and Services”), and

  3. any related support or maintenance services provided by us (“Support Services”).

Rights

You have no rights in, or to, any Product or Support Service other than the rights granted under this Agreement.

Software and Cloud Services

Section 3 (Software Terms) applies specifically to Software. Section 4 (Cloud Services Terms) applies specifically to Cloud Services. All other terms of this Agreement apply to all Products and Services unless otherwise specified.

Affiliates

Your affiliates shall be entitled to make full use of the Products in accordance with the terms of this Agreement to the same extent as if they were you. For purposes of this Agreement, “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

Accounts, Orders, Payments, and Refunds

Account Registration

You must register an Account with us at our website in to place Orders, receive license keys, and manage access to the Software or Cloud Services. Your account information must be kept accurate and complete. You must keep your account information current, so that we may send notices, statements, and other information to you by email or through your Account. You are responsible for all actions taken through your Account, including Orders and Subscriptions made.

Refund policy

You may terminate your initial Order of the applicable Software or Cloud Services under this Agreement, for no reason or any reason, by providing notice of termination. At your request (which may be made through your Account or by contacting us), we may disable the license keys that allowed the Software to operate or disable access to the Cloud Services.

For Software or Cloud Services Orders, we will refund your payment in full if you request a refund within 30 days of the payment of your Order. After 30 days, we will refund your payment pro-rata for the number of months remaining on the term of the Order. For example, if you pay for a 12-month License Term or Subscription Term and request a refund at month 5, we will refund the remaining 7 months.

Software Terms

Grant of License

Under the terms of this Agreement, we grant you a worldwide, non-exclusive, fully paid, non-transferable license to install and use the Software for your own business purposes, during the applicable License Term. You shall use the Software strictly in accordance with the terms of this, and all Related Agreements.

License Delivery

To activate and use the Software, you will be required to provide a license key. License keys are provisioned and delivered electronically to your Account via the Cloud Services and where applicable when payment has been received as per your Order.

Restrictions

You agree not to, and you will not permit others to: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Westgate Cyber Security or its affiliates, partners, suppliers or the licensors of the Application; (e) use the Application for any revenue generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended; (f) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Westgate Cyber Security; (g) use any proprietary information or interfaces of Westgate Cyber Security or other intellectual property of Westgate Cyber Security in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.

License Term and Renewals

This License shall be effective until terminated.

Maintenance and New Releases

The License Term will be specified in your Order and in your Cloud Services account. You will have access, free of charge, to all updates, upgrades and patches for the Software that we release during the License Term. You acknowledge and agree that we may, but are under no obligation to, release any update, upgrade or patch at any time or for any reason. The License Term may be extended for additional periods of time upon payment of a renewal fee before expiry of the then-current period.

Open Source Libraries Used

If your Order includes access to the source code of the Software, we grant you a worldwide, non-exclusive, non-transferable, irrevocable license to use the source code for your own internal business purposes on the terms of this Agreement. You may view and modify the source code for the sole purposes of education, troubleshooting, and customizing features for your own particular needs. Any modified source code constitutes “Your Modifications”. If you modify the source code, you may compile and distribute the resulting executable application for your own internal business purposes. You acknowledge that the source code contains our valuable intellectual property, and you agree to take reasonable measures to help ensure its confidentiality. You agree that we are not obliged to provide any technical support or error corrections in relation to any issues or problems arising out of Your Modifications. You shall indemnify, defend and hold us harmless from and against any and all claims and costs arising out of or in connection to Your Modifications, subject to you receiving (a) prompt written notice of such a claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defence or settlement of such a claim, and (c) all reasonable cooperation from us at your expense.

Third Party Software

The Application may utilise or include third party software that is subject to open source and third party license terms (“Third Party Software”). You acknowledge and agree that Your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event, shall the Application or components thereof be deemed to be “open source” or “publicly available” software.

Cloud Services

Access to Cloud Services

Subject to your acceptance and continued compliance with the terms of this Agreement, we grant you a non-exclusive right to access and use the Cloud Services, during the applicable Subscription Term. You acknowledge that the Cloud Services are online, subscription-based products hosted and managed by us, which may change from time to time.

Subscription Term & Renewals

Your Order will specify the term during which you will have access to the Cloud Services (“Subscription Term”). Unless noted otherwise on your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription. If you cancel or decide to terminate your subscription, we will refund any remaining term on your subscription as per our Refund Policy. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change, or if there has been a change in the applicable fees (for which, if applicable, you will be given at least 90 days’ notice before such change takes effect).

Trial and Free Use Accounts

All trial and free use accounts are provided “as is” and “as available” without any warranty of any kind. Trial and free use accounts may be suspended, terminated, or discontinued at any time and for any reason (or no reason). Westgate Cyber Security disclaims all obligation and liability under the agreement (including liability otherwise provided for) for any harm or damage arising out of or in connection with a trial account, including any obligation or liability with respect to your systems and data. Any configurations or customer data entered into a trial or free use account, and any customisations made to such an account by or for you, may be permanently lost if the trial account is suspended, terminated, or discontinued. Westgate Cyber Security’s indemnity obligations do not apply to trial accounts.

Concurrency Limits and Billing

Your Order may specify a limit on the number of devices you can register with the Software or a limit on the number of devices that can be concurrently connected to the Cloud Services. A “Device” is counted as a single instance of an operating system, hardware, virtual container or TCP/IP stack implementation where the Enclave software is installed.

Fair Usage

Your usage of the Cloud Services is governed by our Acceptable Usage Policy.

Security of Your Data

We implement and maintain security measures to help protect the Cloud Services and Your Data from security attacks. However, you acknowledge and agree that as a consequence of the inherent nature of the Cloud Services, Your Data will often be transported over networks that are not owned or operated by us, and that we are not responsible for any of Your Data that is lost, intercepted, altered or stored across such networks, except to the extent caused by our negligence or intentional misconduct. You acknowledge that we are unable to guarantee complete security or confidentiality of Your Data or guarantee that third parties will never be able to defeat our security measures or those of our third-party service providers. We are General Data Protection Regulation (GDPR) compliant: if we discover or are made aware that any of Your Data has been intercepted, we will follow the GDPR reporting guidelines if the intercepted data may have contained any personally identifiable information.

Term, Renewal and Termination

Termination, removal, suspension and abuse

We may, in our sole and absolute discretion, remove Your Data, or suspend your access to the services, if we deem such action necessary based on your violation of this Agreement or our Acceptable Use Policy. We will provide thirty (30) days’ notice and provide reasonable opportunity for you to correct your breach prior to removing Your Data, but we may also suspend your access immediately without notice if we deem it necessary to protect the Cloud Services, security of other customers or to comply with any law or regulation. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Services if you violate this Agreement, our Acceptable Use Policy or any law or regulation.

Renewal

Your Order will specify the set term during which you will have access to the Products and Services (“Subscription Term”). Unless noted otherwise, all subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription. If you cancel, your subscription will terminate at the end of the then-current Subscription Term, but you will not be entitled to any credits or a refund for amounts accrued or paid prior to the termination. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorisation from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change, or if there has been a change in the applicable fees (for which, if applicable, you will be given 90 days’ notice before such change takes effect).

Use of Information

You represent that You shall comply with the terms and conditions of our Privacy Policy, which sets forth and describes the practices of Company with respect to the collection, use and disclosure of Information in connection with Your use of the Application and Products and Services. We reserve the right to change the provisions the Privacy Policy at any time and from time to time at our sole discretion. We will post any changes to our Privacy Policy on our company website. Your use of our Software following the posting of such changes to the Privacy Policy will constitute Your acceptance of any such changes.

Disclaimer of Warranties

We do not warrant that this Software will meet your requirements or that its operation will be uninterrupted or error free. We exclude and expressly disclaim all express and implied warranties or conditions not stated in this Licence Agreement (including without limitation, loss of profits, loss or corruption of data, business interruption or loss of contracts), so far as such exclusion or disclaimer is permitted under the applicable law. This Licence Agreement does not affect your statutory rights.

Our Products and Services have been developed and deployed with reasonable care but no guarantee or warranty can be implied or is given.

Limitation of Liability

Liability for Your Data

For the avoidance of all doubt, Westgate Cyber Security assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, storing, disclosing or transmitting it. You are responsible for Your Data and We cannot be held responsible for any loss, damage or liabilities resulting from the use of our Software to process, store, transmit or otherwise handle data. You acknowledge and agree that you are responsible and liable in respect of Your Data for any obligations or breaches under any relevant legislation in respect of data and information ownership and use, including, without limitation, privacy laws and intellectual property laws.

Ownership of Your Data

You are responsible for Your Data. You will retain all right, title and interest in and to Your Data in the format that you provide it to us. Subject to the terms of this Agreement, you grant us a worldwide, non-exclusive, royalty-free right to collect, use, transfer and store Your Data to the extent necessary to provide any Product to you. We may access Your Account Data in order to respond to your support requests.

Commensurate liability

Except to the extent that any law or regulation provides otherwise, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence), or otherwise is limited to the purchase price you paid for the Application and Product and Services, and any renewal fees, in the twelve (12) months prior to the event giving rise to the liability.

Damages

Westgate Cyber Security accepts no responsibility or liability for any consequences, losses or liabilities arising from the use of its Products and Services.

Intellectual Property Rights

You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Westgate Cyber Security. Furthermore, You acknowledge and agree that the source and object code of the Applications and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors and suppliers. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by Westgate Cyber Security.

Company Marks

You are not authorized to use our trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of Westgate Cyber Security, which may be withheld for any or no reason.

Indemnification

You shall indemnify, defend and hold harmless Westgate Cyber Security and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (a) Your access to or use of the Application and Products and Services; (b) Your breach of this License; (c) Your violation of law; (d) Your negligence or wilful misconduct; or (e) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.

Governing Law and Jurisdiction

This agreement shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

Cooperation with Law Enforcement

Westgate Cyber Security is a responsible provider. We do not condone or support any use of our Products or Services in unlawful or unethical practices. We will always cooperate with Law Enforcement where legitimately and lawfully requested. Where we have reason to believe that users are carrying out unlawful activities with Our Products and Services we reserve the right to report this to Law Enforcement officials. In such circumstances Customer confidentiality will not apply.

Severability

If any provision of this Licence Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Licence Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

Export Control

You acknowledge that the Software contains encryption technology that is subject to export restrictions applied by the Export Control Organisation (ECO) on behalf of the Government of the United Kingdom (“U.K.”) and import restrictions by certain foreign Governments. You will not and will not allow any third party to remove or export from the U.K. or allow the export or re-export of any part of the Software or any direct product thereof: (a) into any country that the U.K. Government or any agency thereof restricts export or re-export to such countries; or (b) into any country to which such export or re-export is restricted or prohibited, or as to which the U.K. Government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (c) otherwise in violation of any export or import restrictions, laws or regulations of any foreign Government, agency or authority. You agree to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list.

An official statement on export control compliance can be found at https://enclave.io/resources/westgate-cyber-security-export-control-statement-of-compliance.pdf

Entire Agreement

This Licence Agreement contains the entire Agreement between us relating to the subject matter and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to the subject matter.