BREACH NOTIFICATION SERVICE AGREEMENT

This Service Agreement (the “Agreement”) constitutes a legally binding agreement between you and Hold Security, LLC, a Wisconsin limited liability company (“Hold Security,” “we,” or “us”).

BY CHECKING THE BOX STATING THAT YOU HAVE READ AND AGREE TO THIS AGREEMENT OR BY ACCESSING OR USING THE Breach Notification Service (AS DEFINED BELOW), YOU (i) REPRESENT AND WARRANT THAT YOU ARE at least eighteen (18) years old; (ii) AGREE AND CONSENT TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY CHANGES TO THIS AGREEMENT AS SET FORTH HEREIN AND ANY ADDITIONAL POLICIES INCORPORATED HEREIN BY REFERENCE; AND (iii) REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO EXECUTE THIS AGREEMENT AND BIND THE BUSINESS ENTITY ON BEHALF OF WHICH YOU ARE ACTING.

 

 

  1. Definitions.

1.1.“Breach Notification Service” means monitoring of Customer Domains, as described on our website at http://holdsecurity.com/services/deep-web-monitoring/bns/.

1.2. “Confidential Information” means confidential or other proprietary information that is disclosed by either party to the other under this Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge without any breach of the confidentiality rights of either party; (ii) was previously rightfully known to the receiving party without an obligation of confidence; (iii) is independently developed by the receiving party without use of the Confidential Information; or (iv) was lawfully acquired by the receiving party from a third party without breach of any confidentiality rights of either party.

1.3. “Customer Domain” means a distinct subset of the Internet (such as a website) that is owned by you.

1.4. “You” refers to you as an individual person and, in the case of a business entity, that business entity and you as a person authorized by the business entity to enter into and bind the business entity to this Agreement.

  1. Scope of Services.

2.1. Hold Security agrees to provide the Breach Notification Service to you in accordance with the terms and conditions of this Agreement. Hold Security will perform the Breach Notification Service in a good and workmanlike manner, using the degree of skill, care, and judgment consistent with customarily accepted good business practices and otherwise in accordance with all standards for performance of like services established by the industry.

2.2. Hold Security reserves the right to make changes to, or to suspend or discontinue (temporarily or permanently), the Breach Notification Service or any portion thereof. You agree that we will not be liable to you or to any third party for any such change, suspension, or discontinuance.

  1. Customer Domains.

3.1. You hereby appoint Hold Security as your authorized agent for purposes of performing the Breach Notification Service. Hold Security accepts such appointment and agrees that it shall at all times hold itself out as your authorized agent in connection with the Breach Notification Service.

3.2. You represent, warrant, and covenant that: (i) you are the owner of all Customer Domains which are the subject of the Breach Notification Service; (ii) you have the right to request that Hold Security undertake the Breach Notification Service with respect to the applicable Customer Domains; and (iii) Hold Security’s investigation into any unauthorized access to or use of Customer Domains, or any other security breach involving Customer Domains, in connection with Hold Security’s provision of the Breach Notification Service shall not infringe upon or breach the intellectual property, confidentiality, privacy, or other rights of any third party.

3.3. By using the Breach Notification Service, you authorize Hold Security to make any inquiries we deem necessary to validate your ownership of any Customer Domain which is the subject of the Breach Notification Service or any other information you provide to us. This validation process may include, without limitation, asking you to provide confirmation of your ownership of the Customer Domains, or verifying your ownership of the Customer Domains through third party databases or other sources.

  1. Ownership.The materials and information available on or through the website located at www.holdsecurity.com and the Breach Notification Service are protected by copyright, trademark, and other applicable United States and international laws. Hold Security and its licensors retain all right, title, and interest in and to our website, the Breach Notification Service, and all materials and information available on or through the same, including all intellectual property rights therein and thereto.
  2. Registration and Account Security. You will be required to register for an account in order to access and use the Breach Notification Service. When you provide information during the registration process, you agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy. If you register for an account, you agree to accept responsibility for all activities that occur under your username and/or password, if any, and you agree you will not sell, transfer, or assign your subscription or any subscriber rights. You are responsible for maintaining the confidentiality of your login credentials, if any, and for restricting access to your computer (or other device you use to access the Internet, as applicable) so that others may not access the password protected portions of the Breach Notification Service using your account information in whole or in part. You agree to immediately notify Hold Security of any unauthorized use of your login credentials, if any, or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.
  3. Fees and Payment.

6.1. Hold Security will provide the Breach Notification Service to you for a monthly fee (“Subscription Fee”). Provision of the Breach Notification Service is dependent upon your active subscription to the Breach Notification Service and your payment of the Subscription Fee. Hold Security shall be responsible for and shall pay all assessable federal and state income tax on amounts paid under this Agreement. In order to use the Breach Notification Service, you must have a valid accepted payment method as indicated during registration (“Payment Method”). You may cancel your subscription as indicated in Section 8.3 of this Agreement.

6.2. By starting your Breach Notification Service subscription, you are expressly agreeing that Hold Security is authorized to charge you the Subscription Fee to the Payment Method you provide during registration (or to a different Payment Method if you change your account information). Your Payment Method will be charged the initial Subscription Fee upon activation of your Breach Notification Service subscription. The Subscription Fee will be charged to your Payment Method on a monthly basis until your subscription is terminated.

6.3. Your Breach Notification Service subscription will continue month-to-month unless and until you cancel your subscription or Hold Security terminates it as set forth herein. Hold Security automatically bills your Payment Method each month on the calendar day corresponding to the commencement of your subscription. In the event your subscription began on a day not contained in a given month, Hold Security will bill your Payment Method on the last day of such month. For example, if you started your subscription on January 31st, your next payment date is February 28th and your Payment Method would be billed on that date (thereafter, payment will occur on the newly established day of the month, so in the example above, the next bill date after February 28th would be March 28th, and 28th of each month going forward). You must cancel your subscription before it renews each month in order to avoid billing of the next month’s Subscription Fee to your Payment Method. In the event that your Payment Method expires or fails for any reason, Hold Security will make several attempts to get valid authorization (for authorization failures) or notify you to update your Payment Method (for card validation failures). If your Payment Method does not work after the fourth attempt, or you do not update your Payment Method information or cancel your subscription, Hold Security will cancel your subscription and your account will be suspended.

6.4. If you are not completely satisfied with the Breach Notification Service, contact Hold Security within two (2) weeks of activation of your Breach Notification Service subscription and we will refund the initial Subscription Fee billed to your Payment Method, provided that Hold Security has not already notified you of any unauthorized access to or use of the Customer Domains, or any other security breach involving the Customer Domains. EXCEPT AS SET FORTH IN THIS SECTION 6.4, SUBSCRIPTION FEES ARE NONREFUNDABLE, AND NO REFUNDS OR CREDITS FOR PARTIAL SUBSCRIPTION PERIODS WILL BE GIVEN.

  1. Electronic Communications. Communications between you and Hold Security via the Breach Notification Service use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
  2. Term and Termination.

8.1. This Agreement commences on the date you first accept it and continues until you cease use of the Breach Notification Service, or unless and until terminated as provided herein.

8.2. Hold Security has the right to deny access to, and to suspend or terminate your access to, the Breach Notification Service, or to any features or portions of the Breach Notification Service, at any time and for any reason, including if you violate this Agreement. In the event that we suspend or terminate your access to and/or use of the Breach Notification Service, you will continue to be bound by the terms that were in effect as of the date of your suspension or termination.

8.3. You may cancel your Breach Notification Service subscription at any time by accessing your account online or by contacting Hold Security. Cancelling your subscription means that no future Subscription Fees will be charged to your Payment Method. Your access to the Breach Notification Service will terminate on the next monthly anniversary of your subscription date. For example, if you subscribed on January 15th and cancel on May 10th, your access will terminate on May 15th.

  1. Privacy Policy; Data Transfers.

9.1. All information you provide to us or that we otherwise collect when you access and/or use the Breach Notification Service is subject to our Privacy Policy which is hereby incorporated herein by reference. By accessing or using the Breach Notification Service, you consent to all actions taken by us with respect to your information in compliance with our Privacy Policy.

9.2. When we obtain personal information about you through your use of the Breach Notification Service, we may process such information outside of the country in which you are located, including in the United States. The countries in which we process such information may not have the same data protection laws as the country in which you are located. By using the Breach Notification Service or otherwise providing any personal information to us, you expressly consent to the transfer of such information to, and the collection and processing of such information in, the United States and other countries or territories.

  1. Confidential Information.Each party agrees to maintain the confidentiality of Confidential Information and not to disclose, or permit any third party or entity access to, the Confidential Information without prior written permission of the other. Each party agrees not to use the Confidential Information for any purpose not in compliance with its obligations under this Agreement. Notwithstanding the foregoing, each of the parties may disclose Confidential Information to its agents and contractors who need to know it to provide services to such party or to otherwise assist such party in the exercise of its rights, provided that any such third party is subject to written confidentiality obligations substantively similar to these terms. The restrictions set forth herein shall not apply to any Confidential Information to the extent it is required to be disclosed pursuant to any judicial or governmental order; provided that the applicable party gives the other sufficient prior written notice to contest such order.
  2. Indemnification.

11.1. Each party shall defend, indemnify, and hold harmless the other party and its officers, directors, agents, and employees from and against all claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorney fees and costs) (collectively, “Losses”) incurred in connection with, or arising out of, any third party claims or allegations relating to the negligent acts or omissions, or intentional misconduct, of such party in connection with its performance under this Agreement.

11.2. Except as otherwise set forth in Section 11.1, you agree to indemnify, defend, and hold harmless Hold Security and its officers, directors, agents, and employees from and against any and all Losses arising out of or resulting from your use of the Breach Notification Service or any violation of this Agreement or applicable law, by you or by someone accessing the Breach Notification Service via your username or password.

  1. Disclaimer. THE Breach Notification Service IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PROVIDED BY LAW, HOLD SECURITY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT
  2. Limitation of Liability. IN NO EVENT SHALL HOLD SECURITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT HOLD SECURITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOLD SECURITY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF ANY FEES PAID BY YOU TO HOLD SECURITY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF HOLD SECURITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
  3. Miscellaneous.

14.1. Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. Each party consents to the personal jurisdiction of the state and federal courts located in the State of Wisconsin, and agrees that the proper venue for any action arising out of this Agreement shall be in Milwaukee County, Wisconsin.

14.2. Waiver. No failure or delay on the part of any party in exercising any right hereunder, irrespective of the length of time for which such failure or delay shall continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in a signed writing.

14.3. Further Assurances. Each party will, at the request of the other party and without charge (provided that the cost to the providing party is reasonable under the circumstances), execute and deliver all such further instruments and documents as may be reasonably requested to further confirm, carry out, and otherwise accomplish the intent and purpose of this Agreement.

14.4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable, or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken, and the remainder of this Agreement shall remain in full force and effect.

14.5. Entire Agreement. This Agreement, together with our Privacy Policy, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. Hold Security may, at any time, revise or modify this Agreement or impose new conditions for use of the Breach Notification Service. Such changes, revisions, or modifications shall be effective immediately upon notice to you, which may be given by any means including, without limitation, posting on our website or by email. Any use of the Breach Notification Service by you after such notice shall constitute your acceptance of such changes, revisions, or modifications.

14.6. Equitable Relief. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to Hold Security which would not be adequately compensated by monetary damages and that Hold Security shall, in addition to any and all other rights and remedies that may be available at law (which Hold Security does not waive by the exercise of any rights hereunder), be entitled to injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach, without the necessity of posting a bond or other security.

14.7. Notices. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service and sent: (i) if you are the recipient, to the address you provide during registration; (ii) if Hold Security is the recipient, to Hold Security, LLC, Attn: Alex Holden, 5205 5205 W Fairy Chasm Road, Brown Deer, WI 53223; or (iii) to such other address as may be designated by a party from time to time in accordance with this Section. Notice will be effective on the date of receipt or refusal as shown on the delivery receipt.

14.8. Headings. The section headings are intended for reference only and do not affect the meaning or interpretation of this Agreement.

14.9. Survival. The provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination, or cancellation of this Agreement.

14.10.Force Majeure. Each party hereto shall be excused from default or delay in the performance of its obligations hereunder, other than payment obligations, if and to the extent that such default or delay is caused by an act of God, or other causes beyond its reasonable control including, but not limited to, fires, riots, accident, explosion, communication line failures, power failures, flood, or storm. The operation of the preceding sentence shall not, however, relieve a party from its obligation to meet the time schedules required herein unless upon the occurrence of the force majeure event, the party shall have used commercially reasonable efforts to ameliorate or eliminate its effect. In no event shall any postponement of either party’s obligations hereunder as a result of a force majeure event exceed the period of time that the force majeure had an effect on such party. If a delay or interruption of performance by either party resulting from its experiencing a force majeure event exceeds thirty (30) days, then the other party may terminate this Agreement by delivering written notice of termination specifying the date of termination, even though such event does not constitute a breach of this Agreement.

14.11.Assignment; Binding Effect. Hold Security may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of your rights and duties hereunder without the prior written consent of Hold Security. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

14.12.Independent Contractors. The relationship between the parties hereto is that of independent contractors. Except as otherwise expressly set forth herein, nothing in this Agreement will be construed or implied to create a relationship of agency, partners, affiliates, joint employers, or joint venturers. Except as otherwise expressly set forth herein, neither party will have the power or authority to act for the other in any manner or to create obligations or debts which would be binding on the other. Except as otherwise expressly set forth herein, neither party will be responsible for any obligation of the other or be responsible for any act or omission of the other.

14.13.Nonexclusive Agreement. It is expressly understood and agreed that this Agreement does not grant you or Hold Security any exclusive privileges or rights, and you may contract with other entities for the procurement of comparable services, and Hold Security may provide comparable services to other entities, including your direct competitors.

14.14.Limitation on Time to File Claims; Waiver of Jury Trial. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE Breach Notification Service MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE Breach Notification Service.