Last updated: July 2nd, 2020

Welcome to PhishCloud! These Terms of Service govern your (“Customer”) access to and use of the PhishCloud Inc. (“PhishCloud”) platform, websites (including www.phishcloud.com), services, and products (the “Service”). The Service also includes any other services or sites that link to these Terms of Service.  PLEASE NOTE: The Service is currently in an early private beta offered to select users to obtain Feedback.  Please read these Terms carefully.  During the beta, all Customers are subject to the terms that apply to a trial account below.

1.                   SERVICE.

1.1                When using the PhishCloud Service, Customer agrees to: (i) provide accurate information at all times and promptly update any information provided, including Customer’s profile or any other PhishCloud account information; (ii) keep Customer’s access credentials confidential and secure and to promptly notify PhishCloud if they are compromised; and (iii) promptly update any compromised credentials to new credentials and take other necessary steps to protect your account.  Customer is responsible for any inaccurate information provides in connection with the Service and any actions taken under your PhishCloud account credentials, regardless of whether such actions are taken by Customer or a third party. PhishCloud is not liable for any loss or damage arising from any unauthorized use of Customer’s account.

1.2                Customer represents and warrants that it meets the following qualifications: (i) if an individual person, Customer is at least 18 years of age and a resident of the US; (ii) if an organization, Customer is validly organized under applicable US law, and the person completing this registration is authorized to enter into contracts on the entity’s behalf; and (iii) Customer is able to form legally binding contracts under applicable law.

1.3                Subject to the terms of these Terms, PhishCloud will use commercially reasonable efforts to provide Customer the Service.  As part of the registration process, Customer will identify an administrative user name and password for Customer’s PhishCloud account.  PhishCloud reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

2.                   RESTRICTIONS AND RESPONSIBILITIES

2.1                Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by PhishCloud or authorized within the Service); use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, PhishCloud hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Service.  Customer must comply with all domestic and international export laws and regulations that apply to the Service, which may include restrictions on destinations, end users, and end use. To the extent any Software is delivered outside of the United States, Customer will be solely responsible for all compliance with export laws and any customs obligations.

2.2                Customer represents, covenants, and warrants that Customer will use the Service only in compliance with PhishCloud’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Customer hereby agrees to indemnify and hold harmless PhishCloud against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Service.  Although PhishCloud has no obligation to monitor Customer’s use of the Service, PhishCloud may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.

2.3                Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3.                   CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1                Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of PhishCloud includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to PhishCloud to enable the provision of the Service (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply to any information the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2                Customer shall own all right, title and interest in and to the Customer Data.  PhishCloud shall own and retain all right, title and interest in and to (a) the Service and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Service or support, and (c) all intellectual property rights related to any of the foregoing.

3.3                Notwithstanding anything to the contrary, PhishCloud shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  PhishCloud will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other PhishCloud offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.

3.4                If Customer gives to PhishCloud any idea, proposal, suggestion or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements (“Feedback”), Customer gives to PhishCloud, without charge, royalties or other obligation to Customer, the right to make, have made, create derivative works, use, share and commercialize the Feedback in any way and for any purpose. Customer will not give Feedback that is subject to a license that requires PhishCloud to license its platform, technologies or documentation to any third party because PhishCloud includes Customer’s Feedback in them.  Even if designated as confidential, PhishCloud may use Feedback for any purpose without obligation of any kind and Feedback will not create any confidentiality obligation.

3.5                Privacy is important to us. Please read the PhichCloud Privacy Policy [add link] (the “Privacy Policy”) as it describes the types of data PhishCloud collects and how the data is used. Where processing is based on consent and to the extent permitted by law, by agreeing to these Terms, Customer consents to PhishCloud’s collection, use and disclosure of Customer’s data as described here and in the Privacy Policy.

4.                   PAYMENT OF FEES.  Customer will pay PhishCloud the then applicable fees described in the Order Form submitted by Customer in the Service enrollment process in accordance with the terms therein (the “Fees”).  If Customer’s use of the Service exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of these Terms), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  PhishCloud reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that PhishCloud has billed Customer incorrectly, Customer must contact PhishCloud no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to PhishCloud’s customer support department.

5.                   TERM AND TERMINATION

5.1                Subject to earlier termination as provided below, these Terms are for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2                In addition to any other remedies it may have, either party may also terminate these Terms upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms.  Customer will pay in full for the Service up to and including the last day on which the Service are provided.  All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

5.3                If Customer has signed up for a trial account, PhishCloud reserves the right to suspend or terminate Customer’s access to all or a portion of the Service at any time, without notice, for any reason whatsoever, and Customer may discontinue its use of the Service at any time.  For all trial accounts, the Service may be unavailable from time to time, and PhishCloud may change the Service at any time. The Service and any updates to the Service may be unreliable. Customer may experience errors, bugs, unexpected interruptions, delays or periods of inaccessibility, and loss of data. Customer assumes all risks associated with use of the Service. PhishCloud is not liable for any disruption or loss suffered as a result or a disruption in the Service.

6.                   WARRANTY AND DISCLAIMER.  PhishCloud does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Service.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE AND IMPLEMENTATION SERVICE ARE PROVIDED “AS IS” AND PHISHCLOUD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.                   LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, PHISHCLOUD AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PHISHCLOUD’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED $100.00, IN EACH CASE, WHETHER OR NOT PHISHCLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.                   MISCELLANEOUS.  PhishCloud may change these Terms at any time by posting the amended Terms on this page.  Please check the Terms periodically for those changes. Customer’s continued use of the Service after the posting of such changes constitutes acceptance of the amended Terms. For your convenience, the date of last revision is included at the top of this page.  If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.  These Terms are not assignable, transferable or sublicensable by Customer except with PhishCloud’s prior written consent.  PhishCloud may transfer and assign any of its rights and obligations under these Terms without consent.  These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.  No agency, partnership, joint venture, or employment is created as a result of these Terms and Customer does not have any authority of any kind to bind PhishCloud in any respect whatsoever.  In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  These Terms shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions.  Customer agrees to reasonably cooperate with PhishCloud to serve as a reference account upon request.