These Terms and Conditions as accepted by You (the “Agreement”) govern the provision and use of the CIRA DNS Firewall service and the CIRA Cybersecurity Awareness Training service purchased by You from CIRA (the “Services”).
- Use of the Services.
Upon your submission of the Order Form and your acceptance of these Terms and Conditions (the “Effective Date”), and subject to this Agreement and your timely payment of all applicable fees, CIRA grants You a non-exclusive, non-transferable right to access and use the CIRA DNS Firewall service for your internal purposes and to make them available to your end users, if any. Except as set forth in this Use Rights section, CIRA grants no other rights or licenses to You with respect to the CIRA DNS Firewall service. You may use the CIRA DNS Firewall service by configuring your computer(s), IP-enabled electronic devices and/or network equipment settings to use the service. CIRA shall accept, process and resolve CIRA DNS Firewall queries from You subject to the Terms and Conditions herein. CIRA reserves the right to re-direct or terminate recursive traffic that CIRA, in its sole discretion, determines or considers to be harmful or invalid.
In order to use the CIRA Cybersecurity Awareness Training service, You will be required to enter into a Software-as-a-Service agreement with Beauceron Security Inc. (“Beauceron”).
- Payments and Invoicing.
CIRA will begin charging You for the Services on the Effective Date. All fees are due thirty (30) days from the date of CIRA’s invoice, are to be paid in Canadian dollars and, when paid, are non-refundable. In the event payment is not received by the due date set forth on an invoice, CIRA may charge You a late fee comprised of simple non-compounded interest at a rate per annum equivalent to thirty percent (30%). CIRA also reserves the right to suspend provision of the Services or terminate this Agreement for Your failure to pay any invoice.
- Term and Termination.
a) Initial Term. The Agreement and the Services shall commence on the Effective Date and unless terminated earlier as set out below, shall continue for a period as set out in the Order Form (“Initial Term”).
b) Renewal Term. Upon expiry of the Initial Term, the Agreement and the Services will be renewed automatically for the period as set out in the Order Form, unless either party gives written notice of its intent not to renew the Agreement and the Services at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term (the Initial Term and any Renewal Term collectively, the “Term”).
c) Termination. You or CIRA may terminate this Agreement and the Services if: (a) the other party breaches any material term of the Agreement (including a failure to pay fees when due), and fails to remedy such breach within thirty (30) days of receiving notice to do so by the non-defaulting party, (b) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days; or (c) the other party makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise.
CIRA may terminate this Agreement and the Services without cause at any time with sixty (60) days prior written notice. CIRA may also terminate the CIRA Cybersecurity Awareness Training service if Beauceron ceases to provide the service.
d) Effect of Termination. Upon termination or expiry of this Agreement, Your access to the Services will end and CIRA will not be responsible in any way for your loss of the Services or for your access to alternative services. All provisions of the Agreement which, by their nature, should survive termination shall survive termination, including, without limitation, ownership provisions (Section 5), warranties (Section 7), disclaimers (Section 8), limitations of liability (Section 9) and indemnity (Section 10).
- Change in Services.
You acknowledge and agree that the Services may change over time, and that CIRA may make changes to the Services or to the pricing from time to time in its sole discretion. CIRA may change or discontinue the Services, or portions thereof, or change the pricing, at any time with sixty (60) days prior written notice. If such changes are unacceptable to You, then You may terminate this Agreement and the Services by providing written notification to CIRA at least thirty (30) days prior to the date the change is scheduled to take effect. Any use of the Services after the Effective Date of a change or discontinuance will be deemed acceptance of the changes by You.
- Ownership.
You acknowledge and agree that as between You and CIRA, the CIRA DNS Firewall service is the property of CIRA and its licensors and that the domain name server, software, and all data and know-how used in the provision and operation of the CIRA DNS Firewall service are owned exclusively by CIRA and its licensors, and where applicable, are protected by copyright and other applicable intellectual property laws and You claim no ownership interest therein. Nothing in this Agreement grants You any rights to, and You agree not to modify, adapt, alter, copy, reverse engineer (except to the extent permitted by applicable law) or disassemble the CIRA DNS Firewall service, including without limitation any software or data contained therein, in any way.
You also acknowledge and agree that the CIRA Cybersecurity Awareness Training service is the property of Beauceron.
- Confidential Information.
You and CIRA each agree to maintain all Confidential Information (as defined below) of the other party in confidence to the same extent that it protects its own similar Confidential Information (but in no event less than reasonable care) and to use such Confidential Information only as permitted under this Agreement. For purposes of this Agreement, “Confidential Information” shall mean information including, without limitation, algorithms, computer programs, inventions (whether patentable or not), techniques, processes, methodologies, schematics, know-how, ideas, analysis and performance information, user documentation, internal documentation and the features, mode of operation and other details of its products and services, and technical, business, financial, marketing, customer and product development plans, forecasts, strategies, and other information which is either identified or should be reasonably understood to be confidential. Confidential Information disclosed in a tangible or electronic form may be marked or otherwise identified with a legend as being confidential or proprietary, but in no event shall the absence of such mark or identification in any way affect the parties’ obligations hereunder, including without limitation the obligation to treat such information as Confidential Information. You and CIRA each agree to take all reasonable precautions to prevent any unauthorized disclosure or use of the Confidential Information of the other party including, without limitation, disclosing such Confidential Information only to its employees or contractors with a need to know and who are parties to appropriate agreements sufficient to comply with this Section. The foregoing restrictions on use and disclosure shall not apply with respect to Confidential Information which is: (a) known to the receiving party before receipt from the disclosing party; (b) generally available to the public (or becomes so) without the fault or negligence of the receiving party; (c) rightfully received by the receiving party from a third party without a duty of confidentiality; or (d) independently developed by the receiving party or its affiliates without any use of the disclosing party’s Confidential Information. The receiving party may make disclosures required by court order or for the defense or pursuit of legal action provided the receiving party uses diligent efforts to limit disclosure, advises the disclosing party, and, upon request, assists the disclosing party in obtaining confidential treatment or a protective order. The receiving party agrees to return the disclosing party’s Confidential Information upon termination or expiration of this Agreement, or upon any request of the disclosing party.
- Warranties
CIRA represents that the CIRA DNS Firewall service, as delivered, will perform substantially as described in the Service Level Agreement attached hereto as Schedule “A”. Your sole and exclusive remedy and CIRA’s sole and exclusive liability for a breach of the foregoing warranty will be for CIRA to provide a credit for future services in accordance with Schedule “A”.
The Service Level Agreement for the CIRA Cybersecurity Awareness Training service is set out in the Beauceron Software-as-a-Service agreement.
You represent and warrant that You have full power and authority to enter into this Agreement and to perform your obligations hereunder. You represent and warrant that You will comply with all applicable laws in connection with your use of the CIRA DNS Firewall service, and that You will not use, or allow use of the CIRA DNS Firewall service in a manner that is prohibited by any law or regulation, including the Acceptable Use policies set out in Section 11.
- Disclaimer.
NEITHER CIRA NOR ANY OF ITS RESPECTIVE EMPLOYEES OR AGENTS MAKES ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CIRA SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALl CIRA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, OR ANYONE ELSE INVOLVED IN CREATING, SUPPORTING, PRODUCING OR DELIVERING THE SERVICES (INCLUDING WITHOUT LIMITATION SUSPENDING OR DISCONTINUING THE SERVICES) BE LIABLE TO YOU WITH RESPECT TO THE SERVICES OR ANY ERRORS, OMISSIONS, OR INACCURACIES IN ANY CONTENT ACCESSIBLE THROUGH THE SERVICES. CIRA AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS SHALL NOT HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, ECONOMIC OR SPECIAL DAMAGES OF ANY KIND, WHICH ARE RELATED TO THIS AGREEMENT OR THE PROVISION OF THE SERVICES HEREUNDER, EVEN IF CIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CIRA’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR USE OF THE SERVICES SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CIRA BY YOU DURING THE THREE (3) MONTHS PRECEDING THE CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
- Indemnity.
You agree to defend, indemnify and save CIRA and its licensors and their directors, officers, employees contractors, and licensors harmless from and against any and all claims, demands, suits, actions, causes of action and/or liability of any kind whatsoever for all damages, losses and/or expenses (including without limitation, reasonable legal and other related costs) (each a “Claim”) to the extent that the Claim arises out of, or relates to, any information, data, or other content passing through the CIRA DNS Firewall service to or from You, or resulting from, or in connection with, Your or Your end users’ use of the CIRA DNS Firewall service including, without limitation, any Claim (a) that the content or Your website, products or services infringe or misappropriate any intellectual property rights of a third party; (b) that the content or Your website, products or services contain defamatory, libellous, slanderous, obscene or pornographic materials, or violate a third party’s rights of privacy or publicity; (c) brought by your end users; (d) related to Your use or misuse of the CIRA DNS Firewall service; or (e) that arises out of a breach of the Acceptable Use provisions in Section 11 of this Agreement.
- Acceptable Use.
You agree, and shall cause your end users to agree, to use the CIRA DNS Firewall service for lawful purposes only. You agree, and shall cause your end users to agree, not to use the CIRA DNS Firewall service for any of the following impermissible purposes (“Abuses”): (a) use of the CIRA DNS Firewall service in a manner that is prohibited by any applicable law or regulation; (b) use of the CIRA DNS Firewall service in a manner that violates the rights of any third party (including but not limited to intellectual property rights); (c) use of the CIRA DNS Firewall service for any invasive, infringing, defamatory or unlawful purpose; or (d) use of the CIRA DNS Firewall service in a manner that, in CIRA’s reasonable discretion, directly or indirectly, produces a negative effect on CIRA’s systems or network (including, without limitation, overloading servers on the CIRA network or causing portions of the CIRA network to be blocked).
- Use of Data.
You agree that CIRA may make use of your traffic data for research or educational purposes, or to improve the CIRA DNS Firewall service, so long as such data is in an aggregated form and is not identifiable to You.
- Entire Agreement.
The Agreement represents the entire agreement between You and CIRA regarding the Services and supersedes all previous agreements, promises, proposals, representations, understanding and negotiations, whether written or oral, between You and CIRA respecting the subject matter hereof.
- Modification of Terms and Conditions.
Although CIRA may attempt to notify You when major changes are made to this Agreement, you should periodically review the most up-to-date version, which may be available on a restricted access area of CIRA’s website. CIRA may, in its sole discretion, modify or revise this Agreement and its policies at any time, and You agree to be bound by such modifications or revisions by your continued use of the Services.
- Third Party Beneficiaries; Relationship of the Parties.
Except as expressly set out in this Agreement, this Agreement does not provide and shall not be construed to provide third parties with any remedy, claim, cause of action or privilege. Nothing in this Agreement shall be construed as creating an employer-employee or agency relationship, a partnership or a joint venture between the parties.
- Governing Law.
These Terms and Conditions and the relationship between You and CIRA shall be governed by and construed in accordance with the law of the Province of Ontario, Canada, and each party irrevocably agrees to submit to the exclusive jurisdiction of the courts located in Ottawa, Ontario over any claim or matter arising under or in connection with these Terms and Conditions or the legal relationships established by these Terms and Conditions.
- Assignment.
This Agreement may not be assigned by You or CIRA without the prior express consent of the other. Any attempt to assign this Agreement in violation of this Section shall be a breach of this Agreement and shall be null and void.
- Force Majeure.
Except for the payment obligations hereunder, You or CIRA shall be excused from any delay or failure in performance of its obligations hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labour disputes and strikes, riots, acts of terrorism, war or other unanticipated occurrences or problems, and governmental requirements.
- Waiver.
No waiver by You or CIRA of any delay, default or omission by the other party shall affect or impair the rights of the non-defaulting party in respect of any subsequent delay, default or omission of the same or different kind. Failure by You or CIRA at any time to demand performance by the other party or to claim a breach, of any provision of this Agreement shall not constitute a waiver or otherwise affect the rights of such party.
- Severability.
The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held unenforceable by any court of competent jurisdiction, it shall be severed from this Agreement and the remaining provisions shall remain in full force and effect.
SCHEDULE “A” – SERVICE LEVEL AGREEMENT (SLA)
This Schedule A is subject to the terms of, and is incorporated by this reference, into the Agreement.
CIRA reserves the right to modify this SLA from time to time.
Upon the date when You are deployed onto the CIRA DNS Firewall service, there will be a transition period of thirty (30) days (“Transition Period) during which You and CIRA will work to configure several variables in order to meet full operational performance parameters. During the Transition Period, the service level guarantees shall not apply.
After the Transition Period, the CIRA DNS Firewall service will meet or exceed the performance objectives set forth in this Service Level Agreement (SLA). Failure by CIRA to meet the SLA will result in the issuance of a credit to You as set out below.
Availability
1. A “Service Outage” shall mean that the CIRA DNS Firewall service was not available because
a) The CIRA DNS Firewall service was unable to achieve 100% uptime for DNS name resolution.
b) The Web-based user interface was unavailable for four (4) or more consecutive hours in any calendar month, thereby preventing You from being able to reasonably add, delete or modify security policies or view reporting data as committed to in the published functional specifications for such service.
2. The following downtime events shall not be considered part of a Service Outage:
a) Unavailability of the Web-based user interface used to manage security policies or view reporting data for up to four (4) consecutive hours in any calendar month.
b) Unavailability of the CIRA DNS Firewall service due to Your misuse, application programming, non-performance or other negligent or unlawful acts by You or Your agents or Your suppliers, problems with network unavailability outside of the CIRA DNS Server Network or events of Force Majeure.
c) Suspension of the CIRA DNS Firewall service by CIRA in accordance with the terms of the Agreement (e.g. for non-payment, abuses or otherwise).
d) Regarding Item 1(b) above, any regularly scheduled maintenance (“Regularly Scheduled Maintenance”), which shall mean any maintenance performed to any component of the CIRA DNS Server Network of which You are notified forty-eight (48) hours in advance, and that is performed during standard maintenance windows. Notice of Regularly Scheduled Maintenance will be provided to Your designated point of contact by e-mail.
CIRA, in its sole discretion, shall determine whether an event will be considered a “Service Outage” based on its records and data.
Remedies
When you become aware of a Service Outage, You shall notify CIRA Customer Support at [email protected] within five (5) calendar days.
If CIRA determines in its reasonable commercial judgment that the Service Outage event lasted for more than one (1) minute, but fewer than four (4) consecutive hours during a calendar month, CIRA, upon Your request, will credit Your account for such month the pro-rated charges for one (1) day’s service.
If CIRA determines in its reasonable commercial judgment that the Service Outage event lasted for four (4) or more consecutive hours during any calendar month, CIRA, upon Your request, will credit Your account for such month the pro-rated charges for one week’s service.
In order to qualify for any credit, You must have a current and valid subscription for the CIRA DNS Firewall service and must have an account in good standing with CIRA. Credits will only apply to the Monthly Fee for the service for which this commitment was not met. Your account shall not be credited more than once per month under this SLA.
Your sole and exclusive remedy, and CIRA’s sole and exclusive liability, in the event CIRA fails to meet the commitments set forth in this SLA, shall be to receive a credit in accordance with the terms.