Terms and Conditions of Service and End User License Agreement

1. ACKNOWLEDGMENT AND ACCEPTANCE

1.1. Please read these Terms and Conditions of Service and End User License Agreement (“TOS” or “Terms”) before using or accessing in any form or any of the products, application and/or services available through or in connection with K2 Cyber Security’s website, (www.k2io.com) and/or the K2 Cyber Security products, e.g. K2 Prevent or K2 Segment available from https://www.k2io.com (hereinafter the “Products and Services”).These Terms constitute a binding agreement between you and K2 Cyber Security, Inc. and its affiliates (“K2”) and by using and/or merely downloading any of the Products and Services in any form and manner you agree to abide, and that you are bound, by these Terms. You hereby declare that you are at least 18 years old.

1.2. These TOS and the use of the terms “you” or “users” are applicable to all types of users of the Products and Services, including owners who initially set up the Products and Services and/or are granted ownership privileges by the initial owner(s), administrators, who manage and run a team, channel, or group and users who are invited to join an existing group and/or team that has already been created.

1.3. If you are entering into these TOS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its affiliates and users to this TOS. In that case, the terms “you” or “your” shall also refer to such entity, and its affiliates, as applicable. If you do not have such authority, or if you do not agree with this TOS, you may not use the Products and Services.

1.4. K2 may update these Terms from time to time by notifying you at the email address on file for your account. You can request the most recent version of these Terms by sending an email to sales@k2io.com. Your use of the Products and Service following K2’s notice of changed Terms will constitute your acceptance of such changes. It is your responsibility to ensure that any contact, billing or payment information you provide to K2 is updated and correct.

ALL COMMERCIAL USE OF THE PRODUCTS AND SERVICES SHALL BE SUBJECT TO THE FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER A K-2’S -LICENSE FORM OR IN CASE OF FREE-OF-CHARGE LICENSES THE FORM ON K2’s WEBSITE SPECIFYING LICENSE DURATION AND RESTRICTIONS, AGREEMENT WITH THE COMPANY (“LICENSE FORM”), ATTACHED AND INCORPORATED BY REFERENCE TO THESE TERMS, WHICH YOU HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE THE PRODUCTS AND SERVICES. THE TERMS AND CONDITIONS OF THE LICENSE FORM ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TERMS, AND ANY REFERENCE TO “AGREEMENT” SHALL ALSO REFER TO THE THESE TERMS AS WELL AS TO THE LICENSE FORM.

2. THE K2 SERVICE – GRANT OF RIGHTS; RIGHT TO MODIFICATION AND SHUT DOWN

2.1. Subject to timely payment of all applicable fees, you are hereby granted a nonexclusive, non-transferrable, right to use the Products and Services, for your own internal use, until the termination or expiration of the Agreement to which these Terms are attached or incorporated by reference. Use of the Products and Services will be subject to to the time, usage, or other limtiations indicated in the License Form. If you have selected an “Evaluation License,” or free-of-charge license, additional restrictions or terms may apply as described herein.

2.2. Other than the rights expressly licensed hereunder to you, no other rights or interest whatsoever in any of the Products and Services and/or any component thereof, are transferred or granted. Without limiting the foregoing, you may not: (i) use the Products and Services or any part thereof, for purposes other than those explicitly set forth hereunder; (ii) reverse engineer or de-compile, modify or revise Products and Services, or any part thereof, or create derivative works thereof; (iii) sub-license, resell or re-offer the Products and Services, or any part thereof or use the Products and Services to offer services to any third parties; (iv) otherwise commercially utilize the Products and Services, or any part thereof except as expressly permitted under your written agreement with K2.

2.3. You acknowledge and agree that K2 has the right, at any time and for any reason, at its sole discretion with or without notice to you: (i) If you have received an Evaluation License or free-of-charge license, to terminate and/or shut down (temporarily or permanently) any or all of the Products and Services; (ii) to redesign or modify the organization, structure, specifications, “look and feel,” navigation, features and other elements of the Products and Services and/or any part thereof.

2.4. Support for the Software is not included under this Agrement, and any agreement for support is subject to a separate agreement between you and K2. Upgrades or additional modules for the Software, if and when available, are subject to agreement on additional fees or terms.

3. USE OF THE PRODUCTS AND SERVICES

You agree that you will not use the Products and Services for any of the following purposes.

3.1. Any unlawful, invasive, infringing, defamatory or fraudulent purpose;

3.2. To send unsolicited bulk commercial email (“Spam”) of any kind, regardless of the content or nature of such messages;

3.3. Intentionally to send any harmful code or attachment with the Products and Services;

3.4. To use the Products and Services in a way that has a detrimental effect upon K2, its Users or the Products and Services, as determined by K2 at its sole discretion;

3.5. To use or attempt to use the Products and Services in breach of these Terms;

3.6. To transmit harassing, obscene, racist, malicious, abusive, libelous, illegal or deceptive messages or files;

3.7. To commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious act;

3.8. To interfere with the use of the Products and Services by other Users;

3.9. To alter, tamper with or circumvent any aspect of the Products and Services;

3.10. To test or reverse engineer any of the Products and Services in order to find limitations or vulnerabilities.

You acknowledge and agree that you are responsible for your use of the Products and Services. You are fully responsible for the control of and/or access to your account, including limiting access to user names and passwords and you agree to take all reasonable precautions to protect your user name and password and access to your account. You agree that you will immediately notify K2 in the event that you discover or believe that your account or user name or password has been accessed in any unauthorized way. K2 shall not be liable to you or any third party for any failure by you to prevent unauthorized access to your account.

The Products and Services cannot and should not be relied to detect all malicious or other harmful or problematic files or data. Alternatively, K2 is not responsible in the event that the Products and Services may designate some files or data as malicious or harmful, when they are not.

4. USER RESPONSIBILITY FOR CONTENT

4.1. The Products and Services cannot and should not be relied upon to detect all malicious or other harmful or problematic files or data, and you are responsible for all data and content that you post and/or access, even if it was monitored by the Products and Services. K2 is not responsible in any way to the monitored or other content and materials nor does such monitoring guarantee detection of all malicious or other harmful or problematic files or data.

4.2. We urge you not to access or read any suspicious files and/or information even if those
were monitored using a K2 product.

4.3. You understand that all information (such as data files, written text, computer software, code, music, audio files or other sounds, photographs, videos or other images, etc.) which you may be monitoring using the Products and Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”.

4.4. You understand that although you are using the Products and Services you may be exposed to Content that you may find harmful, unlawful, offensive, indecent or objectionable and that you use the Products and Services at your own risk.

4.5. You agree that you are solely responsible for (and that K2 has no responsibility to you or to any third party for) any Content that you access, use, transmit or display while using the Products and Services and for any consequences that your actions may have (including any loss or damage which K2 may suffer) by doing so.

4.6. You agree that you will not engage in any activity that interferes with or disrupts the Products and Services or the servers and networks which are connected to the Products and Services.

5. ACCURACY AND RETENTION OF INFORMATION; COMPLIANCE WITH LAWS

5.1. You agree that any registration information you give to K2 will always be accurate, correct and up to date.

5.2. You agree to use the Products and Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation in the relevant jurisdictions.

5.3. You acknowledge and agree that in connection with the provisions of the Products and Services K2 may gain access to certain information and data with respect to your name, email address and the messages accessed (including with other users) through the affiliate integrated products. All use of such data will be subject to K2’s then-current privacy policy, as posted by K2 on its web site or otherwise made available to you.

6. RIGHT TO SHUT DOWN, DENY OR LIMIT ACCESS FOR EVALUATION

If you have received and Evaluation License or free-of-charge license then in addition to other rights of termination under the Agreement the following shall also apply:

6.1. K2 reserves the right to limit or revoke your access to any of the Products and Services, in its sole discretion, at any time, and for any reason, including, but not limited to technical difficulties or violation of these Terms.

6.2. You acknowledge and agree that the form and nature of the Products and Services which K2 provides may change from time to time without prior notice to you.

6.3. You acknowledge and agree that K2 may stop (permanently or temporarily) providing the Products and Services (or any features within the Products and Services) to you or to users generally at K2’s sole discretion, without prior notice to you. You may stop using the Products and Services at any time. You do not need to specifically inform K2 when you stop using the Products and Services.

6.4. You acknowledge and agree that if K2 disables access to your account, you may be prevented from accessing the Products and Services and your account details or other content which is contained in your account.

7. CONSIDERATION

In consideration for the rights and services granted under this Agreement, you shall pay to K2 the fees specified under the Order Form in accordance with the payment and other terms specified thereunder.

8. COMMUNICATIONS

Notices to you will be addressed via contact information provided by you during the account registration process unless you have notified K2 of any changes.

9. INDEMNITY

You agree to defend, indemnify and hold K2 and anyone on its behalf, including but not limited to, all of its owners, managers, officers and employees, harmless against any losses, expenses, costs, claims, damages (including reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to your breach of the terms of these Terms or your use of the Products or Services.

10. DISCLAIMER OF WARRANTIES AND LIABILITIES

THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE TERMS, K2’s LICENSE FORM, NOR ANY DOCUMENTATION FURNISHED UNDER THEM ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS AND SERVICES IS WITH YOU. SHOULD THE PRODUCTS AND SERVICES PROVE INADEQUATE IN ANY WAY, YOU AND NOT K2 ASSUME THE ENTIRE COST OF ANY COSTS OR DAMAGES INCURRED BY YOU. K2 DOES NOT WARRANT THAT YOU WILL HAVE UNINTERRUPTED OR ERROR-FREE USE OF THE PRODUCTS AND SERVICES, THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN SECURE OR UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME, OR THAT THE PRODUCTS AND SERVICES WILL PREVENT FROM OCCURRING THAT WHICH THEY ARE DESIGNED TO PREVENT. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED, RECEIVED OR SUBMITTED THROUGH THE PRODUCTS AND SERVICES ARE AT YOUR SOLE RISK AND THAT K2 WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING ANY DATA, PERSONAL COMPUTER EQUIPMENT OR STORAGE MEDIA). K2 IS NOT RESPONSIBLE FOR THE CONTENT OF DATA, INFORMATION OR ATTACHMENTS WHICH ARE MONITORED THROUGH K2’S PRODUCTS AND SERVICES.

11. EXPORT CONTROL COMPLIANCE WITH LAWS

Export Restrictions. The Products and Services delivered to you under this Agreement are subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside of the U.S. You shall abide by all applicable export control laws, rules and regulations applicable to the Products and Services. Without derogating from the generality of the foregoing, you agree that you will not export, re-export, or transfer the Products and Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. To avoid any doubt, the use of the Products and Services, in whole or in part, in any country, subject to U.S. or any other applicable jurisdiction export restrictions is not allowed. You specifically agree not to export, re-export, or transfer the Products and Services (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who you know or have reason to know will utilize the Products and Services or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You agree that you shall use the Products and Services solely in a manner that complies with all applicable laws in the jurisdictions in which you use the Products and Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

12. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WHATSOEVER WILL K2, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO YOUR USE OF THE PRODUCTS AND SERVICES, OR RELIANCE ON ANY OF THE PRODUCTS AND SERVICES OR TO ANY ERRORS, INACCURACIES, OMISSIONS, DEFECTS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY K2. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, K2 SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR TO ANY OTHER PARTY FOR THE ACCURACY, SECURITY, TIMELINESS, COMPLETENESS OR CONTINUED AVAILABILITY OF THE PRODUCTS AND SERVICES OR ANY PART THEREOF, INCLUDING USE FOR URGENT, CRITICAL OR EMERGENCY COMMUNICATIONS OR IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR PRIVATE INFORMATION. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE ANY OR ALL OF THE PRODUCTS AND SERVICES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH ANY OF THE PRODUCTS AND SERVICES. IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF K2 UNDER THE AGREEMENT, EXCEED THE GREATER OF: (1) THE AMOUNTS PAID BY YOU TO K2 IN THE 12 MONTHS PERIOD PRECEDING THE EVENT OF LIABILITY; AND (2) $10 THE LIMITATIONS IN THIS SECTION ARE COMPREHENSIVE AND THE EXAMPLES GIVEN ARE NOT EXHAUSTIVE. THE LIMITATIONS IN THIS SECTION ARE SEPARATE AND INDEPENDENT OF ANY OTHER LIMITATIONS IN THIS AGREEMENT AND SHALL NOT FAIL IF SUCH OTHER LIMITATION OR REMEDY FAILS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

13. OWNERSHIP

You acknowledge and agree that K2 is the exclusive owner of the K2 Products and Service, including, without limitation, any and all intellectual property or proprietary rights therein.

14. NOTICES

Any notices or communications under these Terms to you will be addressed to the electronic address specified in your K2 Order Form, as you may update such information from time to time, and will be deemed delivered immediately upon sending in the case of electronic mail and three days after mailing in the case of standard written mail. Notices to K2 shall be addressed to K2 Cyber Security, Inc. 2580 N 1st Street Suite 130, San Jose, CA 95131, or to such other address as K2 may provide to you.

15. ASSIGNMENT

K2 may assign these Terms without your notice or consent. You, however, may not assign these Terms or any rights hereunder, including by operation of law.

16. TERMINATION.

If you default in the performance of any of these Terms and such default is not corrected within 30 days, then then K2, at its option, may, in addition to any other remedies it may have, thereupon terminate this Agreement by giving written notice of termination to you. You may terminate these Terms at any time, but such termination will not entitle you to any refund of fees. The terms of Sections 4, 5, 7, 8, 19, 10 , 11, 12, 13, 14 and 17 will survive any expiration or termination of these Terms.

17. GENERAL

The Terms and the relationship between you and K2 are governed by the laws of the State of California without regard to its conflict of law provisions. Any dispute or claim arising out of or in connection with the Terms will be submitted to the exclusive jurisdiction of the competent courts located in Santa Clara Country, California. K2’s failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and agree that the other provisions of the Terms remain in full force and effect. Neither party to the Terms will be liable to the other for any delay or failure in performance under the Terms resulting directly or indirectly from acts of nature or causes beyond its reasonable control. The Terms constitutes the entire agreement between the parties with respect to the Service and supersede all previous proposals, both oral and written, representations, writings, and all other communications between the parties.