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TechGuard

End User License Agreement

End User License Agreement

This is an End User License Agreement (the "Agreement") between TechGuard Security, LLC ("TechGuard") and You (or "User" or "your"), (each, a "Party" and collectively, the "Parties").

Subject to the terms and conditions of this Agreement, TechGuard is providing the User a license to use the TechGuard SHIELD eLearning software ("TechGuard SHIELD"). Any reference in this Agreement to "Licensed Software" shall mean the TechGuard SHIELD platform, which is provided by InfoSec IQ, part of Cengage Learning, Inc. This Agreement is valid without TechGuard's electronic acceptance of its terms and becomes effective upon the earlier of User's electronic acceptance of its terms or User's use of the Licensed Software. Your access to and use of the Software is conditioned upon your acceptance of and compliance with these Terms. These terms apply to all visitors, users, and others who wish to access or use the Licensed Software. BY ACCESSING THE LICENSED SOFTWARE OR BY SIGNING BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. If you disagree with any part of the terms then you do not have permission to access the Licensed Software.

1. Grant of License

User acknowledges and agrees that: (i) the Licensed Software and all associated services are being licensed and provided by TechGuard; and (ii) TechGuard will have access to certain of your information and has developed a policy, which can be viewed at techguard.com/privacy-policy, to address your privacy concerns.

Subject to this Agreement, TechGuard grants User a non-exclusive, non-assignable, non-transferable, revocable, limited right and license to use the Licensed Software. User shall not:

  • License, sublicense, lease, sell, transfer, assign, distribute, or otherwise make available the Licensed Software or TechGuard content to any third party
  • Modify or make derivative works based upon the Licensed Software or TechGuard content
  • Commercially exploit the Licensed Software or TechGuard content in any way
  • Create Internet "links" to the Licensed Software or "frame" or "mirror" any TechGuard content on any other server, wireless, or Internet-based device
  • Impersonate another user of the Licensed Software
  • Use the Licensed Software to violate the rights of or cause injury to any person or entity

You are solely responsible for maintaining the confidentiality of the access information provided to you ("Credentials") and for all activity that occurs through use of the Credentials. You will not: (i) use another user's Credentials to obtain copies of or access to the Licensed Software; (ii) use your Credentials to download unauthorized copies of or grant others access to the Licensed Software; (iii) use the Licensed Software in a way that violates any third party's rights or any applicable law; (iv) upload any files or software that may damage or provide unauthorized access to the data, software, or hardware of another; or (v) interfere or allow interference with the proper functioning of the Licensed Software.

2. Proprietary Rights

User acknowledges that ownership of and title in and to all intellectual property rights—including patent, trademark, service mark, copyright, and trade secret rights—in the Licensed Software are and shall remain in TechGuard. User acquires only the right to use the Licensed Software and does not acquire any ownership rights or title in or to the Licensed Software. All modifications, updates, revisions, and extensions to the Licensed Software and documentation shall be considered part of the Licensed Software for purposes of this Section 2.

All data, information, content, graphics, text, and other materials or applications prepared by User through the use of the Licensed Software shall be the sole property of User. TechGuard has no obligation to monitor the areas of the Licensed Software through which the User can supply information or material. However, TechGuard reserves the right at all times, in its sole discretion, to screen content submitted by Users and to edit, move, delete, and/or refuse to accept any content that in its judgment violates this Agreement or is otherwise unacceptable or inappropriate, whether for legal or any other reason.

3. Warranty and Indemnification

TechGuard represents, warrants, and covenants that it has all rights necessary to license the Licensed Software, in accordance with the terms of this Agreement, to User.

3.1 Indemnification of User

TechGuard shall indemnify User against claims, liabilities, and costs—including reasonable attorneys' fees—reasonably incurred in the defense of any claim brought against User by third parties alleging that User's use of the Licensed Software infringes or misappropriates: (i) any patent; (ii) a copyright; or (iii) trade secret rights, provided that User promptly notifies TechGuard in writing of any such claim and TechGuard is permitted to control fully the defense and any settlement of such claim, as long as such settlement shall not include a financial obligation on User. User shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to TechGuard.

3.2 Indemnification of TechGuard

To the extent permissible by law, User shall indemnify TechGuard and its licensors against all third-party claims, liabilities, and costs—including reasonable legal fees—reasonably incurred in the defense of any claim (other than for the infringement of intellectual property rights specified in Section 3.1 above) arising out of User's breach of its representations and warranties under this Agreement or User's unauthorized use of the Licensed Software and other proprietary information licensed under this Agreement, provided that TechGuard promptly notifies User in writing of such claim and that User is permitted to control fully the defense and any settlement of the claim.

4. Term and Termination

4.1 Termination

This Agreement will become effective on the date User accepts its terms and conditions or accesses the Licensed Software and will remain in force until User terminates this Agreement. TechGuard may suspend or terminate your access to or use of the Licensed Software for: (a) the actual or suspected violation of these Terms; (b) use of the Licensed Software in a manner that may cause TechGuard or InfoSec IQ to have legal liability or disrupt others' use of the Licensed Software; (c) the suspicion or detection of any malicious code, virus, or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; or (e) unplanned technical problems or outages.

4.2 Data Retention After Termination

You may request access to your content within two (2) years after the expiration or termination of your agreement. You must make such request within two (2) years following termination; otherwise, any content you have stored with the Licensed Software will be returned to User and will not be retrievable, and TechGuard will have no obligation to maintain any data stored in your account.

Once an organization has communicated its desire to terminate TechGuard S.H.I.E.L.D Security Awareness training, TechGuard will export a report of courses completed for each user within the organization. The report will be stored in the client's customer folder within the TechGuard environment. The client folder may contain the signed and completed deployment plan, user list (unless the deployment was accomplished via LDAP), point of contact name and phone number, and any other documents related to training or phishing services delivered. This folder will be retained for a period of two years. All data will be transferred in an encrypted fashion; encrypted email will be used for smaller pieces of data, and larger data transfers will be done using an external encrypted transfer mechanism.

4.3 Return of Content

Upon any termination of this Agreement, User agrees to return to TechGuard any TechGuard content within fifteen (15) days of the effective date of termination.

5. Waiver

No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the Party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right.

6. Severability

If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified, or if necessary severed, to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain unaffected.

7. Governing Law

Except as otherwise restricted by law, this Agreement shall be governed by the internal laws of the State of Missouri, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

8. Export Control Notice

Regardless of any disclosure made by User to TechGuard of an ultimate destination of the Licensed Software, User acknowledges that if the Licensed Software is being released or transferred to User in the United States, it is subject to U.S. and European Union export control laws. User acknowledges its exclusive obligation to ensure that its exports from the United States are in compliance with U.S. export control laws and all applicable governmental regulations of any foreign countries with respect to use of the Licensed Software outside the United States.

User agrees that it will not submit the Licensed Software or any related content to any government agency for licensing consideration or other regulatory approval without the prior written consent of TechGuard. You shall defend, indemnify, and hold TechGuard harmless from and against any and all claims, judgments, awards, and costs (including reasonable legal fees) arising out of User's noncompliance with applicable U.S. or foreign law with respect to the use or transfer of the Licensed Software outside the United States by User and its affiliates.

The Licensed Software uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The User acknowledges and agrees that the Licensed Software shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using this Licensed Software, User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. User agrees to comply strictly with all U.S. export laws.

9. Warranty Disclaimer

EXCEPT AS OTHERWISE RESTRICTED BY LAW, TECHGUARD MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE LICENSED SOFTWARE OR ANY CONTENT. TECHGUARD DOES NOT REPRESENT OR WARRANT THAT:

  • The use of the Licensed Software will be completely secure, timely, uninterrupted, or error-free, or operate in combination with any other hardware, software, system, or data
  • The Licensed Software will meet User's requirements or expectations
  • Any stored data will be accurate or reliable
  • The quality of any products, services, information, or other material obtained through the Licensed Software will meet User's requirements or expectations
  • Errors or defects will be corrected
  • The Licensed Software or the server(s) that make it available are free of viruses or other harmful components

THE LICENSED SOFTWARE AND ALL CONTENT IS PROVIDED TO USER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE—INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS—ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Internet Delays

User acknowledges that access to the Licensed Software may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. TechGuard is not responsible for any delays, delivery failures, or other damage resulting from such problems.

11. Limitation of Liability

EXCEPT AS OTHERWISE RESTRICTED BY LAW OR AS STATED IN SECTION 3, TECHGUARD SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES (IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE)—INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE)—ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LICENSED SOFTWARE, INCLUDING THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, ANY CONTENT OBTAINED FROM OR THROUGH THE LICENSED SOFTWARE, OR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

IN FURTHERANCE, AND NOT IN LIMITATION OF THE FOREGOING, TECHGUARD ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY AS A RESULT OF YOUR ACCESS TO, USE OF, OR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO ARISING OUT OF OR RELATING TO THE LICENSED SOFTWARE.

12. Notices

TechGuard may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service.

Legal notices to TechGuard:

  • Email: [email protected]
  • Mail: TechGuard Security, 1722 Corporate Crossing, Suite 1, O'Fallon, Illinois 62269
  • Duplicate copy via registered mail, return receipt requested, required for legal notices.

13. Entire Agreement and Amendment

This Agreement sets forth the entire understanding and license between User and TechGuard and may be amended only in writing signed by all Parties. No other person is authorized to modify this Agreement or to make any warranty, representation, or promise different than or in addition to those herein. No modification of or amendment to this Agreement shall be effective unless in writing and signed by each of the parties.