TERMS OF SERVICE

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This agreement is between BastionWare, LLC, a Delaware limited liability company (BastionWare), and the Customer agreeing to these terms (Customer).

1. SOFTWARE SERVICE.

This agreement provides Customer access to and usage of an Internet-based password management software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service).

2. USE OF SERVICE.

• Customer Owned Data. All data, content, files and images uploaded by Customer to the Service remains the property of Customer, as between BastionWare and Customer (Customer Data). Customer grants BastionWare the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, BastionWare will provide Customer Data upon request.

• Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

• Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify BastionWare promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's technical documents, its online technical videos, and applicable law.

• BastionWare Support. BastionWare must provide Customer support for the Service under the terms of BastionWare's Customer Support Policy (Support), which is located at https://bastionpass.zendesk.com/

• Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for the time period designated by BastionWare. The Service is provided 'AS IS', with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.

• Free Version. If Customer has registered for a no-charge use of the Service, Customer may access the Service until it is cancelled by BastionWare upon notice via email, or by the Customer. The Service is provided 'AS IS', with no warranty during the no-charge period. All Customer information will be deleted after the no-charge period ends, unless Customer converts its account to a paid Service.

3. SERVICE LEVEL AGREEMENT & WARRANTY.

• Warranty. BastionWare warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service (excluding maintenance outages, outages beyond BastionWare's reasonable control, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.

• DISCLAIMER. BASTIONWARE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE BASTIONWARE TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, BASTIONWARE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

• CONSUMER LAW NOTICE. SOME STATES MAY NOT ALLOW, SUCH DISCLAIMERS, EXCLUSION OR LIMITATION, SO THE ABOVE DISCLAIMER, EXCLUSION OR LIMITATION MAY NOT APPLY TO CUSTOMER.

4. PAYMENT.

• General. Customer must pay all fees as specified on the order. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

• Credit Card Payments. If a credit card account is being used, BastionWare may obtain pre-approval for an amount up to the amount of the order. Customer must pay for the Services online, and BastionWare may charge its credit card for all purchases and for any additional amounts (including any taxes and late fees, as applicable) owed to BastionWare. CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING BASTIONWARE WITH A VALID CREDIT CARD FOR PAYMENT WHICH THEY ARE AUTHORIZED TO USE. If Customer wants to designate a different credit card or use a bank account or if there is a change in Customer’s credit card status, Customer must change its information online in the account within the Service. If a Customer credit card changes or expires, or is revoked, disputed or not valid for any other reason, BastionWare may suspend, terminate, or both (without liability) Customer’s use of the Services upon 5 days’ notice sent to Customer via email (using its email address in the Service).

5. MUTUAL CONFIDENTIALITY.

• Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). BastionWare's Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.

• Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

• Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

• Data Security Measures.

  • Security Measures. In order to protect Customer's Confidential Information, BastionWare: (i) implements and maintains all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer's Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
  • Notice of Data Breach. If BastionWare knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, BastionWare will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. BastionWare will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. BastionWare will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, BastionWare will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. BastionWare will provide Customer with information about what BastionWare has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.

• DPA. The Data Processing Addendum at this link is incorporated into this agreement, if data of EU residents will be processed by the Service.

6. PROPERTY.

• Reservation of Rights. The Service and the Software and Documentation are the proprietary property of BastionWare and its licensors, and all right, title, and interest in and to the Service and the Software and Documentation, including all associated intellectual property rights, remain only with BastionWare. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. BastionWare reserves all rights unless expressly granted in this agreement.

• Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.

• Software and Documentation. All mobile, browser plugin or desktop software provided by BastionWare as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by BastionWare (Software and Documentation) are licensed to Customer as follows: BastionWare grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.

• Statistical Information. BastionWare may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. BastionWare retains all intellectual property rights in such information.

7. TERM AND TERMINATION.

• Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).

• Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

• Return BastionWare Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay BastionWare for any unpaid amounts and destroy or return all property of BastionWare. Upon BastionWare's request, Customer will confirm in writing its compliance with this destruction or return requirement.

• Suspension for Violations of Law. BastionWare may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. BastionWare will attempt to contact Customer in advance.

• Suspension for Non-Payment. BastionWare may temporarily suspend the Service if Customer is more than 10 days late on any payment due.

8. LIABILITY LIMIT.

• Exclusion of Indirect Damages. BastionWare is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

• Total Limit on Liability. Except for BastionWare's indemnity obligations, BastionWare's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

• Consumer Law Notice. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. User may have additional consumer rights under local law. Customer may also have other rights which vary from jurisdiction to jurisdiction.

9. GENERAL CUSTOMER INDEMNITY.

If any third party brings a claim against BastionWare related to Customer’s use or access to the Service, Customer must defend, indemnify, and hold BastionWare harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

10. GOVERNING LAW AND FORUM.

• US Customers Law and Location. For United States based Customers, this agreement is governed by the laws of the State of Texas (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Dallas County, Texas, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

  • Optional US Arbitration for Claims Less than $7,000. Notwithstanding the foregoing, for any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $7,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects’ arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.

• International Customers Governing Law and Arbitration For Customer located outside the United States, this agreement is governed by the laws of Texas, without regard to conflict of laws principles. Any dispute between customer and BastionWare arising out of or related to this agreement must be exclusively determined by binding arbitration in Dallas County, Texas, US in English, under the then current commercial or international rules of The International Centre For Dispute Resolution. The decisions of the arbitrators may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS.

• Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by BastionWare.

• No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.

• Independent Contractors. The parties are independent contractors with respect to each other.

• Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

• Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

• No Additional Terms. BastionWare rejects additional or conflicting terms of a Customer's form-purchasing document.

• Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

• Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

• Mobile Software. BastionWare may make available software to access the Software via a mobile device. To use the Software, Customer must have a mobile device that is compatible with the Software. BastionWare does not warrant that the Software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the Software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that BastionWare may, from time to time, issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.

• Feedback. If Customer provides feedback or suggestions about the Service, then BastionWare (and those it allows to use its technology) may use such information without obligation to Customer.

Last Revised 05/19/2020

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EXHIBIT A - MOBILE SOFTWARE FOR APPLE APP STORE APPS

The following applies to any BastionWare Mobile Software Customer acquires from the Apple App Store (App Store Software):

• Acknowledgment. This agreement is between BastionWare and Customer only, and not with Apple, and BastionWare, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).

• Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.

• Maintenance and Support. BastionWare is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. BastionWare and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.

• Warranty. BastionWare is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of BastionWare to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is BastionWare’s sole responsibility.

• Product Claims. BastionWare and Customer acknowledge that BastionWare, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit BastionWare's liability to Customer beyond what is permitted by applicable law.

• Intellectual Property Rights. BastionWare and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

• Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.

• Third-Party Terms of Agreement. Customer must comply with applicable third-party terms of use when using the App Store Software (e.g., the App Store Software is a VoIP application, then Customer must not be in violation of its wireless data service agreement when using the App Store Software).

• Third-Party Beneficiary. BastionWare and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.