Security Enhancement Systems, LLC
Terms of Service
Last Updated: May 29, 2020
AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
As used herein, the term “Service(s)” includes our Software together with our platform services, which includes our programs, features, functions and report formats, instructions, code samples, online help files and technical documentation, Website, account portal, technical support made generally available by us or pursuant to an Order, and includes any of our SDKs, APIs or software provided to you in connection with your use of our Services.
1. Changes to These Terms
We may update these Terms from time to time. Revisions to these Terms become effective as of the date such revisions are posted on our Website or in your Account portal and supersedes all prior versions. We encourage you to check the effective date of these Terms whenever you visit SES’s website or Account portal. Your continued access or use of our Services constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using SES’s Services and we are not obligated to provide you with the Services.
You understand and agree that these Terms are entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
3. Changes to Our Services
We are always looking to innovate and make SES better, so our APIs and third-party integrations may change over time. The features and functions of our Services may change over time. It is your responsibility to ensure that requests you make to our Services are compatible with our then-current Services.
4. Your Account(s)
To access and/or use the SES Services, Users must register and create a SES Account. To create an Account, you need to give us some information about yourself. Until you apply for an Account, your access to our Services will be limited to what is available to the general public. When registering an Account, you must provide true, accurate, current and complete information about yourself as requested during the Account creation process. If you provide information that is intentionally inaccurate, not current or incomplete in a material way, or if SES has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, SES has the right to suspend or terminate your Account.
You are solely responsible for all use (whether or not authorized) of our Services under your Account(s). You are also solely responsible for all use and for all acts and omissions of anyone that has access to your Account (“End Users”). You are solely responsible for maintaining the confidentiality of all user ID(s) and password(s) giving access to or use of our Services and agree to take all reasonable precautions to prevent unauthorized access to or use of our Services. You agree to notify us promptly of any unauthorized access or use of any user ID(s) and password(s).
5. Access and Use of Our Services
We strive to make our Services available for your use 24/7, but things happen that occasionally (very occasionally) make SES unavailable. We will make our Services available to you in accordance with these Terms and any applicable Order. You are responsible for all of your activity in connection with the Services. You agree to abide by these terms and all laws that apply to your use of SES’s Services.
6. Intellectual Property
6.1 SES Proprietary Rights
SES and the software used in connection with SES’s Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You may not copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, rent, sell, assign, sublicense, infringe or otherwise transfer or attempt to transfer any rights in the SES software. You may not modify the SES software in any manner or form or to use modified versions of the software. You may not access SES Services by any means other than through the interfaces we provide. The SES content on or displayed via the Service, including but not limited to text, graphics, photos, software, letters and service marks, the SES logo and trade name, other SES logos and titles, and registered and unregistered trademarks (“trademark” as used herein includes service marks), is protected under United States copyright, trademark and/or other intellectual property laws. You shall not display, disparage, dilute, or taint our trademarks or use any confusingly similar marks or names, or use our marks in such a way that would misrepresent or cause confusion as to who the proper owner of such mark is.
6.2 Limited License
Subject to the terms and restrictions contained in these Terms and applicable law, SES grants you a limited, universe-wide, non-exclusive, non-assignable and non-transferable license to use the Service solely for the purposes expressly identified in these Terms and any applicable Order. You acknowledge that you may not sublicense, transfer, sell, rent or assign this license. Any attempt to sublicense, transfer, sell, rent or assign this license is null and void. You agree that unless explicitly stated otherwise, any new products, software, data feeds, services, features, enhancements or additions or deletions to the Service are subject to these Terms.
You may not sell, transfer, assign, license, sublicense, or modify the SES content or Service, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the SES content in any way for any public or commercial purpose, unless otherwise approved in writing by SES. Also, you may not attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of these Terms, then your right to access and/or use the SES content and Service will automatically terminate and you must immediately destroy any copies you have made of the SES content. You shall not be entitled to a refund of any fees paid to SES if you violate any of the terms of this Agreement.
7. Our Use and Storage of User Data
Except as agreed by SES and you in writing, SES may periodically delete your User Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of User Data. You further acknowledge and agree that we may access or disclose User Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
Your affiliates (businesses that your business controls) can use SES, but you will be responsible for everything that they do when they are using SES. Affiliates are any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us or is under common control with us.) If applicable to you, your affiliates may order Services directly from us under these Terms, provided that all of your affiliate’s activities are subject to these Terms. You will be responsible for the acts and omissions of your affiliates in connection with each affiliate’s use of our Services.
9. Fees, Payment Terms
You agree to pay the fees generated under your Account, and in accordance with any applicable Order.
10. Fee Disputes
You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within fifteen (15) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this fifteen (15) day period, you will not be entitled to dispute any fees paid or payable by you. If you do not pay us on time (no more than 10 days after we send you a late notice), then we can suspend your Account without letting you know first. If your Account is suspended, then we are not responsible for anything bad that might happen as a result.
If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you under Section 10 of the Agreement, we may suspend our Services associated with your Account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section.
“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
13. Injunctive Relief
The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of Section 12 (Confidentiality) and that, in the event of an actual or threatened breach of the provisions of that Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
14. Warranties and Disclaimers
Except as stated in the Order, and other terms about SES’s support, we are offering our products and Services on an “as is” and “as available” basis.
14.1 NO WARRANTY
WE MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACCURACY, INFRINGEMENT, OR LEGALITY OF MATERIAL OR CONTENT IN OR ACCESSED THROUGH THE SERVICES OR THE SITE.
You will defend, indemnify and hold SES and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to your activities under these Terms or your acts or omissions in connection with the provision of Your Account, including, without limitation, any intellectual property claims relating to the Your Account and any violation by you or your End Users of the terms of Section 6.3 (Restrictions) (“Claim”). We and our affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 15 (Indemnification). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any Claim. You will also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.
16. Exclusion of Damages; Limitations of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 16, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SES BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF $100 OR SUCH OTHER AMOUNT AS PROVIDED IN THE APPLICABLE ORDER, IF ANY. THE PROVISIONS OF THIS SECTION 16 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
17. Termination of These Terms
These Terms become effective on the day you execute an Order with SES, or when you or someone else starts using SES Services under your Account. Unless otherwise provided in an applicable Order, either party may terminate your Account for any reason upon notice to the other party. SES may also terminate or suspend your Account in the event of a material breach of these Terms by you and your failure to fix that breach within five (5) days after notice of such breach.
In addition to suspension of our services for non-payment of fees as described in Section 10 (Fee Disputes), we may also suspend our Services immediately for cause if: (a) there is reason to believe the traffic created from your use of our Services or your use of our Services is fraudulent or negatively impacting the operating capability of our Services; (b) we determine, in our sole discretion, that providing our Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide our Services; or (c) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend our Services to your Account, we will make a reasonable attempt to notify you.
Upon termination or expiration of these Terms, your payment obligations, the terms of this Section 18, and the terms of the following Sections will survive (i.e. still apply): Section 7 (Our Use and Storage of User Data), Section 9 (Fees, Payment Terms), Section 12 (Confidentiality), Section 14 (Warranties and Disclaimer), Section 15 (Indemnification), Section 16 (Exclusion of Damages; Limitation of Liability) and Section 19 (General).
19.1 Compliance with Laws
Both you and SES will comply with the applicable law relating to each of our respective activities under these Terms, including privacy and data protection laws and applicable rules established by the Federal Communications Commission.
19.2 No Waiver
SES’s failure to enforce at any time any provision of these Terms does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by us to be legally binding.
You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. Subject to this Section 19.3, these Terms will be binding on both you and SES and each of our successors and assigns.
You and SES are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and SES will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and SES will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor SES has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
Except as described in Section 20 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to SES shall be copied to [email protected].
19.7 Entire Agreement
These Terms together with any applicable Order supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by SES, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms. In the event of a conflict between these Terms and the terms of any applicable Order, the terms of the Order shall govern.
19.8 Force Majeure
No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
19.9 Governing Law and Venue
These Terms will be governed by and interpreted according to the laws of the State of South Carolina without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. Except as provided in Section 20 (Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or our Services shall be instituted in either the state or federal courts of Charleston, South Carolina, and the parties consent to the personal jurisdiction of these courts.
20. Agreement to Arbitrate
The parties agree that any claim, dispute, or controversy arising out of or relating to the terms and conditions of this Agreement, that cannot otherwise be resolved in good-faith negotiations, shall be resolved in accordance with South Carolina’s Uniform Arbitration Act. The parties shall mutually agree on the selection of one arbitrator who is unrelated to either party. All arbitration proceedings shall take place in Charleston County, South Carolina. The arbitrator’s costs shall be borne equally by both parties, and each party will be responsible for its own costs associated with preparation, discovery, and additional expenses to prosecute or defend an arbitration claim. The prevailing party in the arbitration proceeding will be entitled to recover its reasonable costs and attorney’s fees, in addition to any other relief granted as determined by the arbitrator. The arbitrator shall be bound by the express sections of this Agreement in deciding any arbitration claim. The arbitrator’s decision shall be final.
21. Class Action Waiver
Both you and your affiliates, on one hand, and SES and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor SES and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other SES customers, and cannot be used to decide other disputes with other customers.