Product Use Agreement

This Product Use Agreement (the “Agreement”) governs your access to and use of the Products (as defined below) and is an agreement between Horangi Pte. Ltd. (“Horangi”, “we”, “our”, or “us”) and you or the entity that you represent. This Agreement takes effect on the earlier of a) you clicking the “I Accept” button or check box presented with these terms; b) your access to or use of any of the Products; or c) our acceptance of a Statement of Work,  Order Form and/or Proposal from you (the “Effective Date”).

If you are accessing and/or using the Products on behalf of a corporation, business or other legal entity, you represent and warrant to us that you are at least eighteen (18) years of age, legally able to enter into binding legal agreements, and have the authority to bind such corporation, business or other legal entity to the Agreement. 

Use of the Site and its related materials are governed by the Horangi Website Terms. The Horangi Website Terms can be accessed herehere. 

1. USE OF THE PRODUCTS 

Our Products may only be, in accordance with these Product Terms, accessed by and/or used by: 

a) trial users; 

b) Clients and their Authorised Users; or 

c) Vendors that Horangi has engaged to provide security assessments or other services. 

1.2 You may access and use the Products in accordance with this Agreement. Service Level Agreements, and the Additional Product Terms may apply to certain Products. You acknowledge and agree to comply with the terms of this Agreement, Service Level Agreements and Additional Product Terms (where applicable), and all laws, rules and regulations applicable to your use of the Products. 

1.3 In the event of any inconsistency or conflict between i) the terms of the Statement of Work,  Order Form and/or Proposal; ii) the Additional Product Terms; iii) the Service Level Agreements and iv) this Agreement, such inconsistency or conflict shall be resolved in the following order of precedence, and only to the extent necessary to resolve such inconsistency or conflict: 

a) the Service Level Agreements; 

b) the Statement of Work, Order Form and/or Proposal; 

c) the Additional Product Terms; and 

d) this Agreement.

1.4 To access the Products, You and each Authorised User must have a User Account associated with a valid email address and may be required to provide user identification codes, passwords, and/or other piece(s) of information, including a valid form of payment (such as your bank account or credit card information).  

2. TRIALS

2.1 You may sign up to evaluate a Product for proof of concept, trial, evaluation or other similar purposes (“Trials”). Such Trial shall be for a period of fourteen (14) days only unless we issue an extension in writing to you. Upon termination of the Trial, you shall cease using the Product. Your use of the Product for Trial shall be governed by this Agreement, and such other terms and conditions that we may impose from time to time. 

2.2 Horangi reserves the right to terminate Trials at any time, in its absolute discretion. 

2.3 PRODUCTS PROVIDED DURING TRIAL ARE PROVIDED “AS IS,” AND WE MAKES NO CLAIMS, REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, VALIDITY, OR VERACITY OF THE PRODUCT AND/OR THE FINDINGS. WE SHALL NOT BE LIABLE, IN ANY WAY, FOR YOUR TRIAL USE OF THE PRODUCT, ANY RESULTS THAT MAY OCCUR FROM SUCH USE, OR ANY CONSEQUENCES FROM DECISIONS MADE IN RELIANCE OF YOUR TRIAL. HORANGI DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

3. CHANGES

3.1 We may change or discontinue any of the Products from time to time. We will provide you at least 6 months’ prior notice if we discontinue material functionality of a Product that you are using. 

3.2 We may change, discontinue or add Service Level Agreements from time to time. We will provide you at least three (3) months prior notice where such changes, discontinuation or addition result in a material degradation of a Product. 

3.3 Notices pursuant to this Section 3 will not be required if such notice (a) would pose a security or intellectual property issue to us or the Services, (b) is economically or technically burdensome, (c) would cause us to violate legal requirements or (d) relates to the provision of a free resource.

4. GRANT OF LICENSE AND INTELLECTUAL PROPERTY 

4.1 We are the owner or the licensee of all Intellectual Property Rights in the Product and its related documentation, Findings, Deliverables, and all materials contained in the Product . Unless expressly granted in this Agreement, all such rights are reserved by us. 

4.2 Subject to your compliance with this Agreement, Horangi hereby grants you a personal, worldwide, non-assignable, non-transferrable, non-sublicensable, non-exclusive and revocable licence for the sole purposes described to access and use the Product and only to the extent necessary for your internal use. 

4.3 We may, in our sole discretion, with or without notice to you vary the licence(s) granted to you in line with internal business needs and product direction.

4.4 Neither you nor any Authorised User will use the Products in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any Authorised User will, or will attempt to (a) reverse engineer, disassemble, or decompile the Product or Site Material or apply any other process or procedure to derive the source code of any software included in the Product or Site Material (except to the extent applicable law doesn’t allow this restriction), (b) access or use the Product or Site Material in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell the Product or Site Material. 

4.5 You grant to Horangi the right to use your name, logo and related marks in marketing and sales materials and communications, solely to identify you as a customer of Horangi. Other than expressly provided, neither party shall use the other party’s name, logo or trademarks without the prior written permission of the other party. 

4.6 You may elect to integrate third-party software, services and products (“Third Party Offerings”) with our Product. In doing so, 

a) you acknowledge and agree that we are not responsible for any issues or losses arising from your access to, and use of, any such Third Party Offering;  

b) you acknowledge and agree that your ability to integrate such Third Party Offering on your Product  shall not be taken as an approval by us of such Third Party Offering;  

c) your access top and use of any and all such Third Party Offerings are governed by their respective terms of services or user agreements; and 

d) We reserve the right to reject, refuse, limit or disable the integration of Third Party Offerings for any reason

4.7 You understand that certain items of software within our Product are subject to “open source” licenses (“Open-Source Software”). Some of the Open-Source Software is owned by third parties and is not subject to the terms and conditions of this Product Use Agreement. Each item of the Open Source Software is licensed under the applicable licensed terms which accompanies such Open Source Software. You agree that nothing in this Product Use Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
You can find  a list of used Open Source Software published here .

4.8 Where open source software is used, the following stipulations shall apply to the extent expressly required by the their licenses, the terms of relevant licenses (including in particular the scope of license as well as disclaimers of warranties and liabilities) shall apply to the respective any third party software. Such third party license terms relating to respective software are located at the place as indicated in the software.

5. SECURITY DATA

5.1 The Product allows you and/or your Authorised Users to submit Security Data to us from time to time:

a) by active submission; or

b) by configuring your network, environment, infrastructure, or other system and the Product to allow passive submission, collection, monitoring, and/or detection by the Product.

5.2 The Findings presented to you pursuant to your use of the Product are obtained by collecting, correlating, characterising, and analysing Security Data submitted by you and other users of the Product. While you retain all rights to your Security Data, by submitting Security Data to us, you grant us a limited, worldwide, non-exclusive, royalty-free, non-revocable licence (with the right to sublicense) to use, process, copy, reproduce, adapt, modify, publish, transmit, display and distribute such Security Data, in whole or in part, in any and all media, through any distribution channels, for the following purposes:

a) diagnosing, analysing, correlating, characterising, preparing and populating Findings on the Product;

b) preparing, correlating, and generating statistics and technical reports in anonymised and/or aggregated forms for purposes including, but not limited to, providing, marketing and selling the Product and other services provided by Horangi and/or its Affiliates;

c) testing, modifying, improving, or further developing the Product and its functionalities;

d) facilitating, improving, developing, or providing services and other related advisory and consulting services by Horangi and/or its Affiliates; and

e) such other purposes as reasonably required for the performance of our obligations under this Agreement.

5.3 Subject to Section 5.2 above, we will:

a) maintain commercially reasonable and proportionate security measures to protect all Security Data in our possession or control from unauthorised access, use, copying or disclosure; the details about Horangi’s security controls are described in the Horangi’s Security page;

b) treat your Security Data as your Confidential Information to the extent necessary for us to fulfil the purposes in Section 5.2 above;

c) where our cloud-scanning Products are concerned, not make or retain copies of any data stored within your environment or infrastructure other than Security Data; and

d) where our code-scanning Products are concerned, delete the copy(ies) of source code submitted to us immediately after analysis.

6. PERSONAL DATA 

6.1 You or your Authorised Users may be asked to provide certain personal data and verification details about you in exchange for certain user identification codes, passwords, and/or other piece(s) of information (“Access Credentials”) in respect of a User Account to use and access the Product. Please refer to our Privacy Notice, available at https://horangi.com/privacy, for more information about the personal data we collect about you and how we use it.

6.2 By providing any personal data or related verification details to us, you acknowledge that you have read and understood our Privacy Notice, and consent to the collection, use and disclosure of your or your Authorised User’s personal data by Horangi for the purposes set out in our Privacy Notice.

6.3 You agree to be responsible for providing accurate, complete, and up-to-date personal data and verification details about yourself and/or the entity or business you represent, and consent to us collecting such personal data and verification details in accordance with our Privacy Notice. You represent and warrant that you have the authority to bind any such entity or business to this Agreement. 

7. CONFIDENTIAL INFORMATION

7.1 For the purposes of this Agreement, “Disclosing Party” means a Party and/or a Party’s Affiliate that discloses Confidential Information under this Agreement, and ”Receiving Party” means a Party or a Party’s Affiliate party that receives or acquires Confidential Information and/or documents directly or indirectly under this Agreement.

7.2 The Receiving Party shall take reasonable precautions to safeguard the Disclosing Party’s Confidential Information up to the standard to which it protects its own Confidential Information.

7.3 The Receiving Party shall not use the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent, except in furtherance of the relationship created by this Agreement or subsequent agreements, or disclose such Confidential Information except:

a) to obtain advice from legal or financial consultants; or

b) if compelled by law, in which case the Receiving Party will use its best efforts to give the Disclosing Party prompt written notice of the requirement so that the disclosure can be contested. The Receiving Party shall disclose no more than the portion of the Confidential Information which it is legally required to disclose.

7.4 The Receiving Party may only disclose the Disclosing Party’s Confidential Information to its employees, independent contractors, or consultants on a “need-to-know” basis, and subject to the confidentiality obligations imposed in this Section.

7.5 The Parties mutually agree to immediately notify each other upon discovery of any unauthorised use or disclosure of Confidential Information, and agree to cooperate in any reasonable way to help the other regain possession of the Confidential Information and prevent further unauthorised use.

7.6 When Confidential Information is no longer necessary to perform any obligation under any agreement between the Parties, the Receiving Party shall return such Confidential Information to the Disclosing Party, or destroy it at the Disclosing Party’s request. However, the Receiving Party may retain any Confidential Information that 

a) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or 

b) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; 

provided, however, that any such retained information shall continue to be protected under this Agreement.

7.7 The Receiving Party is free to develop products independently without the use of the Disclosing Party’s Confidential Information. Neither Party may restrict or restrain the other Party’s employees and/or independent contractors from future work assignments notwithstanding such employees’ access to Confidential Information, provided such Confidential Information is not disclosed in violation of this Agreement.

7.8 The Receiving Party may provide suggestions, comments, or other feedback to the Disclosing Party with respect to the other’s Confidential Information. Feedback is voluntary and the receiving party is not required to hold it in confidence. The Receiving Party will not disclose the source of feedback without the Disclosing Party’s consent. Feedback may be used for any purpose without obligation of any kind.

7.9 Each Party acknowledges that a breach of this Section shall cause the other Party irreparable injury and damage. Therefore, each Party agrees that those breaches may be stopped through injunctive proceedings in addition to any rights and remedies which may be available to the injured Party at law or in equity.

8. ACCESS CREDENTIALS

8.1 You must treat all Access Credentials as confidential, and not disclose them to any third party. 

8.2 You are also responsible for making all arrangements necessary to keep such Access Credentials secure. You are also responsible for any and all activities that occur on the Site and/or Product  using your User Account or authenticated with your Access Credentials. 

8.3 You agree to notify us immediately of any unauthorised access to or use of your Access Credentials or any User Account, or any other breach of security. You also agree to ensure that you will exit from your User Account at the end of each authenticated session. You shall be responsible for any act, omission, fraud or negligence of your Authorised Users and your Account. 

8.4 We reserve the right to disable, restrict, suspend, or terminate any Access Credential or User Account, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of the Agreement; and/or are misusing the Product in any way and/or or where the Access Credential or User Account is identified as insecure or breached.

8.5 Where we consider necessary or appropriate, we will report any breach of this Agreement to law enforcement authorities and we will cooperate with such authorities by disclosing your identity and providing any information about you within our systems to them.

8.6 If you know or suspect that anyone other than you knows your Access Credentials or has access to your User Account, you must promptly notify us at [email protected].

9. TERM AND TERMINATION

9.1 The Agreement will commence on the Effective Date and will remain in effect for the relevant subscription period as may be provided in Statement of Work,  Order Form and/or Proposal (the “Initial Term”), unless terminated earlier in accordance with this Section 9. 

9.2 After the Initial Term, the Agreement will automatically renew (each, a “Renewal Term”), unless either Party terminates the Agreement by giving the other party a 90 days written notice before the expiry of the applicable Initial Term or Renewal Term (the Initial Term and any Renewal Term thereafter are collectively referred to as the “Term”). 

9.3 Any notice of termination of this Agreement by either party to the other must include a date that complies with the notice periods in Section 9, and include the basis of such Termination (“Termination Date”).

9.4 Termination: 

a) Termination for Convenience. Horangi may terminate this Agreement for any reason by providing you at least 30 days’ advance notice. You may terminate this Agreement for any reason by providing us with at least 30 days’ notice and closing your account for all Products in line with the related Product closing processes. 

b) Termination for Cause: 

i. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

ii. We may terminate this Agreement if we become aware of any possible violations by you in your use of the Site and/or the Product, or any other provision of this Agreement,, or any other Agreement that we may have with you. We reserve the right to investigate such violations, and may, at our sole discretion, terminate or suspend your use of the Site and the Product without prior notice to you.

iii. We may also terminate this Agreement if our relationship with a third-party partner who provides software or other technology that we use to provide the Products expires, terminates or requires us to change the way we provide the Products. 

iv. We may also terminate this Agreement in order to comply with the law or requests of governmental entities. 

9.5 Upon Termination of this Agreement, the following shall apply: 

a) All your rights under this Agreement shall immediately terminate; 

b) You remain responsible for all fees and charges you have incurred through the Termination Date; 

c) You will immediately cease using the Product. 

9.6 All provisions of these Terms that by their nature should survive termination shall survive (including, without limitation, license restrictions, all limitations on liability, indemnification obligations, disclaimers of warranties, governing law and dispute resolution, and intellectual property protection).

10. FEES

10.1 You shall pay fees as stated in the Statement of Work,  Order Form, Invoice and/or Proposal within thirty (30) days from receiving such Statement of Work,  Order Form, Invoice, marketplace billing and/or Proposal. If you do not pay fees in accordance with the terms of the Agreement then, in addition to any other available remedies, we may suspend your use of the Product until payment is made or terminate your use of the Product. Any fees not paid when due shall accrue interest at a rate of 1.5% per month or at the highest maximum legal rate (whichever is higher). You may not withhold, reduce or set-off fees owed. All fees are non-refundable. Horangi may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Horangi on an indemnity basis in connection with such collection activity, including the collection fees, court costs, and attorney's fees. 

10.2 You shall notify us of billing disputes in writing before the due date.  

10.3 Horangi reserves the right to modify the subscription fees for the Product, effective upon commencement of the Renewal Term, by notifying you of such change in writing at least four (4) months’ before the end of the then-current subscription term and the Agreement will be deemed amended accordingly. 

10.4 Horangi reserves the right to offer additional functionality or premium feature improvements at additional costs. 

10.5 You are responsible for any taxes, duties, and customs fees associated with the purchase of the Product (other than Horangi’s income tax) (collectively “Taxes”), and you will pay Horangi for the Products without any reduction for Taxes. If Horangi is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Horangi with a valid tax exemption certificate. If you are required by law to withhold any Taxes from your payments to Horangi, you must provide Horangi with an official tax receipt or other appropriate documentation to support such withholding and reimburse Horangi for such withholding tax.

10.6 Except to the extent otherwise expressly stated in this Agreement or in Statement of Work,  Order Form, Invoice and/or Proposal, all obligations to pay fees are non-cancellable and all payments are non-refundable. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Horangi regarding future functionality or features.

11. YOUR OBLIGATIONS

11.1 In addition to the other obligations and responsibilities stated in this Agreement, you are responsible for:

a) configuring your own network, environment, infrastructure, or other system in order to access, use, or otherwise benefit from the Site and/or the Product; and

b) any consequences arising from the active or passive submission of such Security Data to Horangi thereof, including any consequences relating to other users or third parties; 

c) ensuring and procuring that you and your Authorised Users comply with the Agreement. 

12. WARRANTIES AND DISCLAIMERS

Applicable to both Paid Products and Trials, Free Resources and Beta Testing Products

12.1 THE WARRANTIES STATED IN THIS SECTION 12 ARE THE EXCLUSIVE OBLIGATIONS OF HORANGI RELATING TO THE PRODUCT. WE DO NOT WARRANT THAT YOUR ACCESS TO AND USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT WARRANT THE ACCURACY, INTEGRITY OR COMPLETENESS OF THE PRODUCT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HORANGI DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS SECTION, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. EXCEPT AS PROVIDED HEREIN. THE PRODUCT IS PROVIDED TO YOU ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS. HORANGI WILL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO YOU BY HORANGI OR ITS EMPLOYEES, AFFILIATES, OR AGENTS UNLESS SUCH THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT BETWEEN HORANGI AND YOU, AND THEN ONLY TO THE EXTENT EXPRESSLY PROVIDED IN SUCH AGREEMENT.

12.2 If you believe a Product does not comply with these warranties, you must notify Horangi in writing within 30 days of delivery of the non-conforming Product. 

Paid Products

12.3 If you have paid for the Product, we represent as follows:

a) during the Term, the Product will operate substantially as described in our Online Documentation and, according to generally accepted industry standards and practices;

b) We will use commercially reasonable efforts in providing support services in connection with the Products.

12.4 You acknowledge that the Products may utilise automatic data processing and analysis technologies, which may include automated techniques, and which may rely on heuristics and other similar techniques, the accuracy and efficiency of which may vary or be affected by variables beyond our knowledge or control, and accordingly while we will do all things that are reasonably required to maximise the accuracy and efficiency of the Products, technically or otherwise, Customer acknowledges that:

a) the output of the Products may contain errors and inaccuracies from time to time;

b) the Product is not designed to be used in isolation, and you must employ other software and techniques independent of the Product, including manual analysis and verification of the output of the Product, to verify or contradict the accuracy of the output of the Product; and

c) the technology that enables the Product may, from time to time, be updated, amended, and/or modified by us, and the accuracy and efficiency of the Product may vary from time to time.

12.5 Horangi shall not be liable for any breach of warranties caused by a defect in or modification to the applicable Product caused or made by you, any Authorised User, or a person acting at your direction.  

Trials, Free Resources and Beta Testing Products

12.6 Free resources and Products that are undergoing beta testing are provided “as is” and Horangi makes no claims, representations or warranties as to the accuracy, validity, or veracity of the free resources and/or its related Findings. We shall not be liable, in any way, for your use of the free resources and Products, any results that may occur from such use, or any consequences from decisions made in reliance of your use of the free resources or its related Findings.

12.7 If you are using the Product on Trial, Section 2 applies. 

Authorisations

12.8 You represent and warrant to us that: 

a) You have all the necessary rights, power and authority (third party or otherwise) to satisfy your obligations with regard to the Security Data; and

b) collection of the Security Data by us will not infringe your rights or those of any third party. 

12.9 You fully authorise and consent to us performing all features and functionalities necessary to fully enable your access to and use of the Product. You represent and warrant to us that: 

a) you have the full right, power and authority to consent to have us identify vulnerabilities and misconfigurations of the IP address and/or URL and/or domain names and/or cloud infrastructure identified by you, whether electronically or by any other means, whether by the Product or by any other means; 

b) own the systems to be tested and/or have obtained or will obtain all necessary third party authorisations for us to identify such vulnerabilities; 

c) understand that unauthorised scanning may constitute crimes under, inter alia, the Penal Code and Computer Misuse Act of Singapore, unless expressly authorised by you; and 

d) you have made all necessary system backups and implemented all necessary disaster recovery plans and procedures to return your system, network, or other infrastructure to its pre-service state. 

12.10 We shall not be liable for your or any third party’s data loss arising from or in connection with your access to and use of the Product. 

13. LIMITATION OF LIABILITY AND INDEMNITIES 

Liabilities

13.1 As your exclusive remedy and Horangi’s sole liability for breach of warranties contained in this Agreement, Horangi will use commercially reasonable efforts to correct the non-conforming Product at no additional charge to Customer within a reasonable time period. 

13.2 Except as otherwise specifically provided in this Section 13, and whatever the legal basis for your claim, our liability to you in connection with the Site and/or the Product will be limited, to the maximum extent permitted by applicable law, to direct damages up to the amount you have paid us (where applicable) for any access or use giving rise to the claim, from the period of twelve (12) months up to the date of such claim. If you are a trial user, we disclaim all liability to you to the maximum extent permitted by applicable law.

13.3 We shall not be liable for any special, incidental, indirect, consequential or punitive damages of any kind whatsoever, even if we or a Horangi representative has been notified orally or in writing of the possibility of such damage.

13.4 The parties acknowledge and agree that the limitations of liability, disclaimer of warranties, and any exclusion of damages included herein represent an allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose) which is reflected by the fees paid.

Indemnities and/or Defence

13.5 Each Party shall defend and indemnify the other Party, its Affiliates and their officers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from any third party claim, suit, action or proceeding (each, an ”Action”) arising out of or resulting from bodily injury, death of any person; or damage to real or tangible personal property (not including loss of data), resulting from the negligent or fraudulent acts or omissions amounting to wilful misconduct of the other Party.

13.6 You shall defend, indemnify, and hold us, our Affiliates, and our officers, directors, employees, agents, successors and permitted assigns harmless from and against all Losses arising out of or resulting from any third party claim (including but not limited to claims involving Intellectual Property rights infringement or breach of the PDPA or other applicable Personal Data protection legislation), suit, action or proceeding arising out of, related to, or resulting from this Agreement. For the avoidance of doubt, such indemnity shall not cover third party claims for breaches of the PDPA or other applicable Personal Data protection legislation attributable to the actions of your third party vendors.

13.7 Subject to the provisions contained in this Clause 13, Horangi will defend you and your Affiliates, officers, directors and employees against any third party claim alleging that our Product infringes or misappropriates that third party’s intellectual property rights. However, you will not be entitled to the defence contained in this Clause 13.7 where such infringement arises due to a combination of our Product and your materials or content. In addition, Horangi would have no obligations or liability arising from your or any Authorised User’s use of the Products after we have notified you to discontinue such use. The remedies in this Clause 13.7 are the sole and exclusive remedy for any third party claims regarding infringement or misappropriation of intellectual property rights by our Product. 

13.8 Notwithstanding the provisions of this Section, if you are a government entity, any limitation of liability in this Section does not apply to the extent a court of competent jurisdiction (including any appellate court of final review) determines such limitation of liability violates the law in force in the jurisdiction applicable to you, in which case the specific limitation that the court determines is in violation of law shall be void.

13.9 The limitations on and exclusions of liability for damages in Agreement apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranty, or any other legal theory.

13.10 Except for any different period required by applicable law, any action arising under this Agreement shall be brought within two (2) years from the date that the cause of action arose. In addition, the obligations contained in Clauses 13.5, 13.6 and 13.7 shall apply only if the party seeking defense and/or indemnity: 

a) gives the other party prompt written notice of the claim; 

b) permits the other party to control the defense and settlement of the claim (save for such settlements that involve any commitment, other than the payment of money, which shall require the consent of the party seeking defence or indemnity); and

c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim.

14. FEEDBACK

14.1 We value and welcome feedback on the  the Product, and the Professional Services. You agree that we are free to use, disclose, adopt and/or modify any feedback and any information (including any ideas, concepts, proposals, suggestions or comments) provided by you to use in connection with our Product or any products or services we offer, without any payment to you.

14.2 You hereby waive and agree to waive any rights to claim for any fees, royalties, charges or other payments in relation to our use, disclosure, adoption and/or modification of any of your feedback.

15. CONTACT US 

15.1 For any questions or problems relating to your access to or use of the Product, you may contact us by:

a) providing us with feedback through the Site;

b) writing to us at FUNAN, 109 NORTH BRIDGE ROAD, #05-21, SINGAPORE 179097; or

c) directly contacting your assigned Customer Success Manager (where applicable).

15.2 For any questions regarding this Agreement, and for the purposes of Section 16, you may email us at [email protected], or write to us at 109 North Bridge Rd, #05-21, Singapore 179097.

16. NOTICES

16.1 We may provide any notice to you under this Agreement by: (i) posting a notice on the Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

16.2 You may provide notice to us under this Agreement by personal delivery, overnight courier or registered or certified mail to the mailing address as listed in Section 15. We may update the means by which notice may be effected on us by posting a notice on the Site or by sending a message to the email address then associated with your account. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

17. MISCELLANEOUS 

17.1 Headings. Clause and paragraph headings shall not affect the interpretation of this Agreement.

17.2 References to Writing. A reference to “writing” or “written” includes e-mail.

17.3 Entire Agreement. As a Trial user, this Agreement constitute the entire agreement between you and us concerning the Product, and it supersedes, and its terms govern, all prior proposals, agreements, understandings, or other communications between the parties, oral or written, regarding the Product. As a paying Client, this Agreement shall form part of, and are incorporated into, the commercial agreement comprising the Sales Order and/or the Proposal  and the Terms of Business.

17.4 Assignment and Factoring. You may not assign this Agreement without our prior written consent. Any attempt by you to assign this Agreement without such consent may be deemed notice of termination of this Agreement, effective on the date of assignment, by you. You acknowledge and agree that we may, from time to time, assign, factor, or otherwise transfer certain book debts and/or rights to receive payments under an agreement incorporating this Agreement.

17.5 No Third Party Beneficiaries. Except as expressly referenced herein, this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person, corporation, business, or other legal entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. Application of the Contracts (Rights of Third Parties) Act 2001 is expressly excluded.

17.6 Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend this Agreement to give effect to the stricken clause to the maximum extent possible.

17.7 Non-Impediment. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Horangi to provide consulting, development, or other services of any kind to any individual or entity (including without limitation developing products, performing services or developing materials which are similar to and/or competitive with the Product, the Professional Services and/or Deliverables hereunder).

17.8 Changes to this Agreement and the Products. We may amend this Agreement from time to time by posting the updated terms on our Site. If we make any material changes to this Agreement, we will take steps to notify you whether by email or by notification on the Site or Product.  Unless Horangi’s change to this Agreement is required by a court, judicial or administrative order issued by the competent authority, or by applicable law, or applies to new Products or functionality, then the following will apply:

a) If a change to this Agreement has a material adverse impact on the you, then you may object to the change by notifying Horangi within 30 days of when Horangi provides notice of such a change;

b) If you so notify Horangi, then you will remain governed by such terms in effect immediately before the change until the earlier of: (i) the end of the then-current Term  (ii) 12 months after the notice was given.

You should always review this Agreement prior to your access or use of the Site and/or the Product to ensure that you understand the current terms of the Agreement apply to your access or use thereof.

17.9 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Horangi may use its own independent contractors to perform the Services, in which case Horangi will be responsible for the performance of such independent contractors.

17.10 Controlling Language. This Agreement is written in, and shall be construed in, the English language. In the event that this Agreement is translated into any other language, the English language version shall prevail to the extent of any inconsistency between the English language and the translated version.

17.11 Waiver. No waiver of any breach of this Agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorised representative of the waiving Party.

17.12 Governing Law. This Agreement is by the laws of Singapore.

17.13 Dispute Resolution. Any dispute arising out of or in connection with this Agreement (“Dispute”), including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. The parties further agree that following the commencement of arbitration, they will attempt in good faith to resolve the Dispute through mediation at the Singapore International Mediation Centre (“SIMC”), in accordance with the SIAC-SIMC Arb-Med-Arb Protocol for the time being in force. Any settlement reached in the course of the mediation shall be referred to the arbitral tribunal appointed by SIAC and may be made a consent award on agreed terms.

17.14 Survival. All provisions of this Agreement that by their nature should survive termination shall survive (including, without limitation, license restrictions, all limitations on liability, indemnification obligations, disclaimers of warranties, governing law and dispute resolution, and intellectual property protection).

18. DEFINITIONS

18.1 “Additional Product Terms” means the additional terms relating to specific Products available herehere.

18.2 “Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such a person. The term ”control” (including the terms ”controlled by” and ”under common control with”) means the possession, directly or indirectly, of the power, by any means, to direct, manage, oversee and/or restrict the affairs, business or assets of a person.

18.3 “Authorised User” means the user(s) authorised by Client to use the Product on behalf of Client.

18.4 “Confidential Information” means any information, marked or otherwise, identified in writing by a Party to this Agreement as proprietary or confidential or, under the circumstances surrounding the disclosure, ought in good faith be treated as proprietary or confidential. Confidential Information includes, without limitation, trade secrets, technology, and non-public information pertaining to either Party’s organisation, protocols, security systems, network, personnel, clients, marketing, and pricing. Information presented in or relating to Sales Orders, Proposals, Horangi’s internal security reports, Findings, the Product, Deliverables, our beta products and prototypes, and Access Credentials are our Confidential Information. Confidential Information does not include information which:

a) the Receiving Party developed independently without reference to any Confidential Information of the Disclosing Party;

b) the Receiving Party knew before receiving it from the Disclosing Party;

c) is or subsequently becomes publicly available other than by a breach of confidentiality; and

d) is received from another source other than by a breach of an obligation of confidentiality.

18.5 “Deliverables” means all reports and work products provided by or on behalf of Horangi to Client in connection with any and all Professional Services.

18.6 “Findings” means, without limitation, any and all findings, issues, statistics, analyses, descriptions, recommendations, conclusions, advice, remediation instructions, reports (technical or otherwise) and other content relating to your network, environment, infrastructure or other system, presented to you and/or your Authorised Users pursuant to your use of the Product.

18.7 “Product” means the suite of proprietary software products provided by Horangi including, but not limited to Warden.

18.8 ”Intellectual Property Rights” or “IPRs” means:

a) patents, patent disclosures and inventions (whether patentable or not);

b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith;

c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases;

d) trade secrets, know-how and other Confidential Information; and

e) all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

18.9 “law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

18.10 “Losses” means all expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal, or other), amounts paid or payable in settlement, including any interest, assessments, and all other charges paid or payable in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness or participate in, any legal proceedings.

18.11 Online Documentation means the information regarding our Products located at the following sites: 

a) https://www.horangi.com/products/warden/warden-pricing

b) https://support.horangi.com/en/platform-features#all-about-warden

18.12 “PDPA” means Singapore’s Personal Data Protection Act 2012 (No. 26 of 2012). The term “personal data” shall have the meaning set out in the PDPA.

18.13 “Professional Services” or “Solutions” means any and all professional and consulting services provided by Horangi including, but not limited to, cyber strategy management, secure code reviews, penetration tests, vulnerability assessments, secure architecture reviews, security awareness training, and incident response.

18.14 “Security Data” means any and all cybersecurity-related data, metadata, files, logs, identifiers, code, information, documents, materials and other content relating to a network, environment, infrastructure or system, submitted whether actively or passively, by a visitor, trial user, Client, or Authorised User of a Client to Horangi. Security Data does not include personal data.