Terms Of Service

Rubica Terms of Service & End User License Agreement

7/2019


By clicking accept, signing above, or by installing, copying or otherwise using the Rubica Software, you are indicating that you understand and agree to abide by each and every term set forth in these Rubica Terms of Service below:


Rubica Inc. (interchangeably or collectively, the “Company”) licenses this Software to User (interchangeably or collectively, “You” or “Your” or “Customer”) subject to the terms contained in this Rubica Terms of Service & End User License Agreement (this “Agreement”).


Read the terms and conditions of this Agreement carefully before installing, copying, and using the Software and, if any, the accompanying documentation.


   

1. Acceptance of Terms.   Your use of and access to the cyber security mobile and device application software provided by Company including, without limitation, any and all code, programs, and functions related to the operation and delivery of the services described in Section 2 below (the “Software”) is subject to and conditioned on your strict compliance with the terms of this Agreement and all applicable local, state, national, and international laws, rules and regulations. By clicking accept, executing a written copy of this Agreement, or by installing, copying or otherwise using the Software, you are indicating that you understand and agree to abide by each and every term set forth in this Agreement.If the Software is to be used by or on behalf of a company, other organization, or a group of individuals on the same customer account, the individual expressing acceptance of this Agreement represents and warrants that he or she has the authority to bind that group of individuals, company or other organization to the terms of this Agreement, and “you,” and “your” will refer to that company, other organization, group, or all individuals in that customer account . If you do not accept all of the Terms, then the Company is unwilling to license the Software to you and you may not install, copy, or otherwise use the Software and must promptly delete all copies of the Software without retaining any copies thereof. The Company reserves the right to update this Agreement at any time without any prior notice to User.


2. Rubica Service Description: Rubica acts as an early warning system to alert and defend against cyber threat. Through our endpoint software, our remote security operations center of cyber security experts monitor your device traffic for suspicious activity and threat indicators. Our cyber analysts work to quantify threats, undertake additional research and investigation when necessary, adjust security controls proactively, and build protections into the security stack to automatically block and protect from known quantifiable threats. The service provided under this Agreement (“Service”) includes several elements, dependent on the tier of service you purchased:


2.1 "Rubica" tier of service includes:

2.1.1   Software licenses for the specific number of devices and individual users designated in the applicable purchased package or price quote. Devices must meet one of the platform and operating system specifications listed on the Rubica website.

2.1.2   Continuous intrusion detection and prevention(IDS/IPS) and automatic signature-based blocking of known malware, phishing sites, and other attack vectors.

2.1.3   Email-based customer support during the hours of 9am to 5pm Pacific Time, Monday through Friday (excluding U.S. National Holidays).

2.2 "Rubica Private Client" tier of service:

2.2.1   Software licenses for the specific number of devices and individual users designated in the applicable purchased package or price quote. Devices must meet one of the platform and operating system specifications listed on the Rubica website.

2.2.2   Continuous intrusion detection and prevention (IDS/IPS) and automatic signature-based blocking of known malware, phishing sites, and other attack vectors.

2.2.3   Phone- and email-based active cyber threat response, cyber security advice, and customer service during the hours of 9am-5pm Pacific Standard time, Monday-Friday (excluding U.S. National Holidays).

2.2.4   Detection and mitigation of potential threats via hands-on analysis of data patterns across our unique client base, and investigation of anomalous events specifically detected in device traffic.

2.2.5   In the event a threat is detected, Rubica provides Customer with tailored instructions and recommendations for mitigating and remediating the issue. If needed, Rubica will provide telephonic support to the Customer’s point-of-contact who has physical access to the device (ex: Customer or Customer’s designated IT administrator) in order to assist that person through the remediation steps and recommendations.


3.  Customer’s Responsibilities:  Cyber security requires a collaborative effort by each of Customer and Rubica. There is no 100% guarantee of data security; however, with Rubica’s Services in combination with Customer’s diligence in the following areas, the risk of cyber breach can be significantly reduced. Customer agrees to:


3.1    ensure the Rubica security Software/App is always turned on/enabled for each applicable device;

3.2   implement Rubica-recommended remediations, security protocols, and tips when and as advised;

3.3   notifiy Rubica of any changes to personal information such as a new email address or phone number; and

3.4   notify Rubica if you believe your email, personal information, or any online accounts have been compromised.


4.  Third-Party Services.   From time to time, Rubica may make available to you, at no cost or other obligation, access to certain third- party services such as password managers, identity theft monitoring, antivirus software , and IT service providers/consultants (“Third Party Services”). It is your decision whether or not to use the Third Party Services and such use is not, in any way, a condition of your use of Rubica’s Software. Third Party Services are not related to or otherwise affiliated with Rubica. Rubica makes no endorsements, recommendations, representations or warranties regarding Third Party Services and hereby disclaims any and all liabilities related to your relationship with Third Party Service providers, including use of their service.


5.  Disclaimer.   You understand and agree that the Service and Software are provided to you “AS IS” and on an “AS AVAILABLE” basis. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. There is no 100% guarantee of cyber security or data loss protection. The Company makes no warranty that the Service or Software will meet your requirements, will detect or prevent all security threats or vulnerabilities, or be available on an uninterrupted, secure, or error-free basis. Some states or other jurisdictions do not allow the exclusion of express or implied warranties in certain circumstances, so the above disclaimer may not apply to you. IN THAT EVENT, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN APPLICABILITY AND DURATION ONLY TO THE MINIMUM EXTENT, INCLUDING THE TIME PERIOD, REQUIRED BY THE APPLICABLE LAW.


6. Confidentiality & Confidential content accessible only to Customers.   


6.1.  Customer agrees that, unless otherwise specifically provided herein, the Software and, if any, the documentation regarding the Software that is provided to Customer by Company (“Documentation”) constitute confidential proprietary information of Company. Customer shall permit only authorized users, who possess rightfully obtained license keys, to use the Software or to view, if any, the Documentation. Customer agrees not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. Customer agrees to implement reasonable security measures to protect such confidential information, and at all times shall use best efforts to maintain the security of the Software and Documentation. Customer will use its best efforts to cooperate with and assist Company in identifying and preventing any reverse engineering, unauthorized use, copying, or disclosure of the Software and, if any, Documentation, or any portion thereof. Please see Section 10 below with respect to Company protection of information collected from You.


6.2.  "Confidential Information" means any non-public information that relates to the actual or anticipated business, research, or development of Company and any proprietary information, trade secrets, and know-how or other intellectual property of Company that is disclosed by Company to Customer, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, source codes, research, product plans, products, services, software code, customer lists, development plans, inventions, innovations, processes, formulas, technology, designs, drawings, notes, blueprints, photographs, databases, written or printed documents, information recorded on digital or electronic media (whether machine-readable or user- readable), systems, marketing, finances, and other business. Confidential Information is the sole property of Company. By disclosing information to Customer, Company does not grant any express or implied right to any other person to any such Confidential Information.


Confidential Information does not include any information that Customer can demonstrate: (a) was publicly known and made generally available in the public domain prior to the time that such information was disclosed to Customer, (b) became publicly known and made generally available, after such information was disclosed to Customer, through no wrongful action or inaction of Customer or others who were under confidentiality obligations, or (c) was in Customer’s possession, without confidentiality restrictions, at the time such information was disclosed to User, as clearly shown by User’s written records that were in existence prior to the disclosure pursuant to this Agreement.


No Confidential Information of Company shall be used by Customer except as required for the performance of Customer’s obligations under this Agreement. Customer shall not disclose or permit the disclosure of any Confidential Information of Company to any third party.


Customer shall notify Company promptly upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement, and shall cooperate with Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent their future unauthorized use. 


7. Grant of License.   Subject to your compliance with this Agreement, the Company grants to you a nonexclusive, nontransferable, revocable license to: (i) install one copy of the Software on each compatible device for which the Company has issued you a valid license key for the Software (each, an “Authorized Device”); and (ii) to use the Software on each such Authorized Device solely for your own personal or internal business use during the license period for which the Company has issued you the applicable license key(s). The foregoing rights may be suspended or terminated as set forth in this Agreement. For paid licenses, the foregoing rights are also conditioned upon your timely payment and the Company’s timely receipt of all applicable fees (as specified in this Agreement or the Rubica Service Agreement) and applicable taxes, if any.


8. Restrictions on Grant


8.1.  The Software is intended to be used only in accordance with Company’s applicable documentation and only to monitor and protect the security of mobile devices and wireless networks that you own or control. Any other use of the Software is strictly prohibited and will automatically result in the revocation of the license granted in Section 6 above.


8.2.  Except as otherwise specifically permitted in this Agreement, You may not: (i) modify or create any derivative works of any Software or documentation, including – without limitation – translation or localization; (code written to published APIs (Application programming interfaces) for the Software shall not be deemed derivative works); (ii) copy any portion of the Software; (iii) separate Software, which is licensed as a single product, into its component parts; (iv) modify, reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any part of the Software (except to the extent applicable laws specifically prohibit such restriction); (v) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer any rights to any Software; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels that belong to or otherwise represent the Company; or (vii) publish or make public any results of benchmark tests run on any Software to a third party; (viii) make the functionality of the Software available to multiple users through any means; (ix) use the Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or Documentation; or (x) encourage or enable anyone to do or attempt to do any of the foregoing.


8.3.  You will indemnify and hold harmless Company and its directors, officers and representatives to the full extent permitted by law against any and all claims, liabilities, costs, expenses, and other harm arising from your use of the Software or Service; or any other violation of this Agreement (including any of the prohibitions stated above). The Company reserves the right, but has no obligation, to monitor compliance with the prohibitions set forth above, and it may investigate and prosecute violations of any of the above and/or involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.


9. Ownership


9.1.  Your rights with respect to the Software are limited to those expressly granted in this Agreement. Company and its licensors reserve sole and exclusive ownership of the Software and all copyrights, patents, trademarks, and all other intellectual property rights therein or related thereto. You may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Software. If you provide the Company with any suggestions, comments, or other feedback regarding the Software or Service (“Feedback”) you acknowledge that such Feedback will automatically become the exclusive property of the Company, and it may use (or not use) any such Feedback in any manner and for any purpose, without compensation to you and without implying or creating any interest on your part in any of our products or services that may be based on such Feedback. You hereby irrevocably assign to the Company all right, title, and interest in any Feedback you provide.


9.2.  All works of authorship, designs, code, templates, inventions, improvements, technology, databases, dashboards, processes, tools, methodologies, developments, discoveries, and trade secrets conceived, made, or discovered by Company related to the Software or Service, solely or in collaboration with others (collectively, “Inventions”) shall be the sole property of Company. In addition, Inventions that constitute copyrightable subject matter shall not be considered “works made for hire” as that term is defined in the United States Copyright Act. To the extent that ownership of the Inventions does not by operation of law vest in Company, Customer shall, at no cost to the Company, assign (or cause to be assigned) and does hereby assign fully to Company all right, title, and interest in and to the Inventions, including all related intellectual property rights.


9.3.  To the extent that any deliverables, reports, summaries, analysis, dashboards or other information provided by Company to CustomerUser include Inventions, or any other proprietary information of Company, or other materials owned by Company or in which Company has an interest (“Pre-Existing Material”), Company shall retain all rights to the Pre-Existing Materials, including any modifications or improvements to the Pre-Existing Materials made during or as a result of the activities contemplated by this Agreement. Customer acknowledges and agrees that Pre-Existing Material and Inventions, including any and all copies or derivative works of Pre- Existing Material and Inventions, are the exclusive property of Company. You agree to reasonably cooperate with Company to take any steps necessary to record or otherwise effectuate the foregoing ownership of Pre-Existing Material and Inventions.


10. Modifications.  The Software may change from time to time (for example, the Company may push updates to your authorized device, or modify the user interface), and/or the Company may stop providing features (permanently or temporarily), possibly without prior notice to You. In the case of paid licenses, however, the Company will not discontinue the essential features of the Software during your paid license period without offering a reasonable substitute or alternative.


11. Data Collection and Transmission


11.1.  In order for the Software to identify patterns associated with security attacks and to perform other functions for which it was designed, it will gather and transmit to the Company’s servers certain technical information, user data, and metadata associated with your authorized device(s) and use of the Software, including without limitation device IDs, MAC addresses, metadata, IP addresses, URLs and browsing data, HTTP-site application data, network metadata, and device operating system, status, version, and configuration (collectively, “Data”). You consent to our collection, transmission, storage, monitoring, copying, processing, analysis and use of the Data to administer the Software, to develop and improve the Software and the Company’s other products and services, and to monitor compliance with this Agreement. You acknowledge and agree that this may include transmission of your Data to or from locations in the United States, Europe, and other countries or jurisdictions, potentially including those outside of where you reside or use the Software. Company will use commercially reasonable efforts to protect the information collected from you in accordance with our Rubica Data Security Policy, the terms of which may be updated at the sole discretion of Company. The Safe Harbor provisions related to Article 26(2) of Directive 95/46/EC and any similar, applicable laws or regulations are hereby incorporated as if fully set forth herein.


11.2.  Rubica will not sell any of our customer’s personal information that we may collect from their use of the Rubica VPN (“VPN Data”). We may, from time to time, sell the anonymized nonidentifiable results of our analysis of your data such as threat patterns or threat detection rulesets. The forgoing warranty is made only by Rubica, Inc. and does not apply to actions by any third parties. If Rubica breaches this provision, Rubica agrees to pay the customer an amount equivalent to three times the monies received from Rubica’s sale of such customer’s VPN Data.


12. Third Party Software.  The Software may be accompanied by or utilize certain third-party software components, libraries or applications that are distributed (with or without modifications) under open-source licensing terms (the “Open Source Components”). Your rights with respect to the Open Source Components are, to the extent of any conflict with the Terms, governed by and subject to the terms of the open-source licenses under which they are distributed. You are responsible for complying with those licenses. You may not assume or infer that the Company endorses, or has reviewed, verified, or authenticated, any Open Source Components or other third-party software that may be furnished with, available through, or used in connection with the Software. Open Source Components and any other third party software, and the information or results provided by them, may be unreliable, inaccurate, incomplete, delayed, or otherwise defective. The Company makes no representations, warranties, or guarantees whatsoever in connection with any third party software or the information or results provided by it.


13. Term of this Agreement.  Your rights under this Agreement will expire at the end of the period(s) for which you have acquired a valid license key from the Company for the Software. The Software may cease to function once the license key has expired. Any license renewals or extensions will be subject to availability and your payment of all applicable fees as then in effect. The Company has no obligation to offer license renewals or extensions, and it may condition renewals upon your acceptance of revised or new terms and conditions. Your rights under this Agreement will automatically terminate, and the Company may suspend or terminate your use of the Software immediately and without notice if you breach any of the terms of this Agreement. Upon expiration or termination of this Agreement, you agree to promptly and permanently delete all copies of the Software that are on any device(s) or otherwise in your possession or control.


14. Payment, Cancellation and Refunds.  Customer will pay for the Service in advance, prior to the first day of Service. Payments shall be made either on a month-to-month subscription basis or on a term subscription (ex: 6-months, 1-year, 3-years) as set forth in this Agreement or in the quote for services purchased by Customer online. Fees for the Service will be reoccurring until this Agreement is terminated by either party via the online method used for the original sign-up (ex: Rubica sign-up portal, App Store, etc.). Company may adjust the pricing for Services from time to time, at its discretion, by providing notice to Customer at least 30 days advance notice.


15. Limit of Liability.  SUBJECT TO SECTION 11.2 ABOVE, COMPANY’S TOTAL LIABILITY TO USER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, )EXCLUDING CLAIMS THAT (I) THE SOFTWARE INFRINGES THE RIGHTS OF THIRD PARTY INTELLECTUAL PROPERTY (II) ARE CONCLUSIVELY ADJUDICATED TO RESULT DUE TO COMPANY’S WILLFUL MISCONDUCT OR (III) BREACH OF ITS DATA PROTECTION OBLIGATIONS UNDER SECTION 10 OF THIS AGREEMENT) WILL NOT EXCEED THE AMOUNT OF FEES USER PAID TO COMPANY FOR THE SOFTWARE LICENSE. IF CUSTOMER HAS AN EVALUATION OR OTHER NON-PAID LICENSE, COMPANY WILL HAVE NO LIABILITY TO USER WHATSOEVER; PROVIDED, HOWEVER, THAT WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, COMPANY’S TOTAL LIABILITY SHALL INSTEAD BE LIMITED TO THE SUM OF FIFTY U.S. DOLLARS ($50.00). COMPANY WILL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THESE TERMS OR RESULTING FROM CUSTOMER’S ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. You acknowledge that it is your responsibility to implement back-up plans and other safeguards appropriate for the value of the networks, devices, data, and systems with which you use the Software and, accordingly, that the foregoing exclusions and limitations of damages and liability are reasonable. The allocation of risk described in this Section is an essential basis of the bargain between you and the Company, and without it, the fees charged for the Software would be significantly higher. To the extent, if any, that applicable local laws prohibit the exclusion or limitation of certain liabilities or damages, the provisions of this Section will apply fully to the maximum extent permitted by such laws.


16. Indemnification.  In addition to, and in no way limiting the other provisions of this Agreement, Company and Customer expressly agree to the following indemnification provision:


Customer will indemnify Company, its affiliates, and their respective employees, officers, directors, successors, assigns, agents for any and all costs, liabilities, expenses and losses (including reasonable attorneys’ fees and costs) (collectively “Costs”) relating to any claims brought by a third party to the extent based upon: (i) negligent or intentionally wrongful acts of Customer or Customer’s employees, agents, or network users; (ii) Customer’s unauthorized modification of the Software or breach of the terms of this Agreement; or (iii) Customer’s failure to promptly implement security remediation recommendations.


Company shall defend, indemnify, and hold the Customer and its officers, directors, successors, assigns and agents harmless from and against any and all claims, actions, causes of action, loss, damage, liability, cost or expenses, including, without limitation, reasonable attorneys’ fees and costs, arising from or related to third party claims that the Software infringes such party’s intellectual property rights.


17. Governing Law and Choice of Forum.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington, U.S.A, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved exclusively in the federal or state courts situated within King County or Seattle, Washington. To the maximum extent permitted by law, you hereby consent to the exclusive jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts.


18. Export Restrictions.  You agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.


19. General.  Company’s failure to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. You may not assign, delegate or transfer this Agreement or any of your rights or obligations hereunder without our prior written consent, and any attempt to do so will be void. We may assign these this Agreement without your consent. This Agreement (together with the Service Agreement, Exhibits and Addendums attached to this Agreement) constitutes the entire agreement between you and us regarding the Software and Service, and they supersede and replace any prior agreements and understandings between you and us regarding the Software or Service. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and together which shall constitute one and the same agreement.


Rubica Terms of Service

7/2019