BforeAI Terms and Conditions
Terms and conditions
Master Service Agreement
These Terms of Use (this “Agreement”) set out terms and conditions that govern the access and use of certain services (collectively, the “Service”) available on or through websites of PREDIMYA, SAS (“bfore.ai”) by you, a user of the Service (“you” or “Customer”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with PREDIMYA SAS (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Service on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “Customer” and “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Service.
Scope of use; Other agreements.
(A) Customer’s access and use of the Service and any related user documentation (“Documentation”) shall be limited to solely its own internal security purposes, and shall otherwise be subject to and in compliance with all the terms and conditions herein. Such access and use of the Service is also restricted by and subject to further conditions in any separate agreement regarding such access and use that is between Customer and either (i) bfore.ai (or its affiliates) or (ii) one of bfore.ai’s permitted resellers (each, an “Other Agreement”), including any subscription fee, subscription term, scope of use, or other limitations, restrictions or obligations applicable to Customer therein. As also noted in Section 2 below, access and use of the Service may require an active subscription pursuant to an Other Agreement. (B) Notwithstanding anything else herein, this Agreement does not provide any rights to Customer, including any right to access or use the Service, but for clarity does impose obligations on Customer.
Takedown Requests
If included in purchased Support Services and requested by Customer, Bfore.ai will initiate Takedown Requests with the applicable Source Platform or other third-party online service provider. In such case, Customer hereby grants to Bfore.ai for the Order Term a limited, revocable appointment to submit Takedown Requests on behalf of Customer (and any Covered Affiliate and Authorized Users), and agrees to provide written authorizations upon Bfore.ai’s request that Bfore.ai can share with the third-party provider(s) to confirm Bfore.ai’s authority to submit such Takedown Requests. Customer understands that Bfore.ai does not and cannot control the processing of Takedown Requests by Source Platforms or other third-party providers, guarantee success or provide legal advice.
Suspension and Termination.
To the extent Customer materially breaches this Agreement or any Other Agreement, or Bfore.ai believes in good faith that it has done so or that Customer’s continued access and use of the Service poses a threat to Bfore.ai or any third party, Bfore.ai may, with or without notice to Customer, suspend or terminate Customer’s access and use of the Service or this Agreement. Following any termination of this Agreement, Customer agrees that it shall continue to be bound by this Agreement. For clarity, Customer’s access and use of the Service may require an active subscription, including payment of relevant fees by or for Customer, and in the absence of such an active subscription in good standing, Bfore.ai may in its discretion suspend or terminate any or all access or use of the Service.
Restriction; Proprietary Rights.
Customer shall not (and shall not allow any third party to): (i) decompile, disassemble, reverse engineer or attempt to deconstruct, identify or discover any source code, underlying ideas or other technology, user interface techniques or algorithms of the Service; (ii) encumber, transfer, distribute, sell, disclose, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or use for the benefit of any third party (including to or for any Customer affiliate or subsidiary), or otherwise use (except as expressly permitted herein) any part of the Service or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service; (v) use the Service or Documentation in the development or marketing of any software, service or other offering that is similar to or competes with any Bfore.ai offering; (vi) use any product data as a training set for machine learning or training of AI; (vii) use any robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Service; (viii) perform, or publish or otherwise disclose the results of, any benchmarking, availability or performance testing or analyses of the Service or Customer’s use thereof; (ix) interfere with or disrupt the Service or related servers or networks; or (x) use the product in any harmful or unlawful ways, including but not limited to misuse of credit card information or other personal information, violation of any data privacy or computer laws and regulations, or distribution or use in violation of Bfore.ai’s Acceptable Use Policy, or any U.S. export controls, economic sanctions, or anticorruption laws or regulations. All acts and omissions of Customer’s employees and other personnel will be deemed to be those of Customer, and Customer shall be responsible therefor.
The Service is the proprietary intellectual property of Bfore.ai that contains trade secrets and is protected by copyright law. An API license, if available as set forth in an Other Agreement between Customer and Bfore.ai (or its affiliates), authorizes Customer to programmatically access certain Bfore.ai data and functionality available as part of the Service hereunder, limited to the specific API type and API credit quota subscribed. Customer is prohibited from reselling or otherwise distributing or disclosing Bfore.ai data, delivered directly or as a derived product or service, to any third parties. Unless expressly permitted by an applicable Other Agreement between Customer and Bfore.ai (or its affiliates), redistribution or copies of any part of the service is not allowed. Except for API access, Customer’s access and use of the Service shall be via a password-protected URL designated by Bfore.ai. Customer is responsible for how it accesses such URL. Each Customer user login/password for the Service is limited to use by a single named individual, cannot be shared with others, and can be used only on a single device or other login point at any time (i.e., no multiple simultaneous logins).
Bfore.ai retains sole and exclusive ownership of all right, title, and interest in and to the Service and any other technology used to provide it. Any and all enhancements, modifications, corrections and derivative works that are made to the Service will be owned by Bfore.ai. Bfore.ai shall own all rights, title and interest in any deliverables created by Bfore.ai and provided to Customer, and all such deliverables shall be subject to all Customer restrictions and obligations set forth herein (as if such deliverables were part of the “Service” hereunder). Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s ideas, processes, standards, practices, and management policies and procedures, that is input by Customer into the Service or supplied to Bfore.ai (“Customer Data”). Bfore.ai may use Customer Data to provide the Service, develop and improve its offerings, and otherwise in its business.
Logo.
Customer agrees to allow the use of its name and logo in a general list of Bfore.ai customers , for case studies and prospecting material and consents to receiving communications regarding product updates, customer support, and marketing initiatives from Bfore.ai.
Confidentiality.
Customer shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, subsidiaries, outsourcers and third party service providers with a need to know in connection with its performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder and are bound by appropriate confidentiality obligations), copy or use for purposes other than the performance of this Agreement, any information, in any form or format, disclosed by Bfore.ai (or its affiliates), or otherwise accessed or received by Customer relating to Bfore.ai (or its affiliates) or the Service, during the term of this Agreement that is marked as confidential (or similar) or would reasonably be considered confidential, which may include information relating to Bfore.ai’s (or any of its affiliate’s) business affairs, trade secrets, technology, research, or development (“Confidential Information”) and Customer agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Notwithstanding the above requirements, the Service and Documentation will be deemed to be Bfore.ai’s Confidential Information. Breach of this Section may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, Bfore.ai shall have the right to seek injunctive or other equitable relief, without any requirement to post bond, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such breach. Customer shall be liable to Bfore.ai for any use or disclosure in violation of this Section by Customer or its affiliates, subsidiaries, employees, advisors, accountants, attorneys, outsources, third party service providers or any other related party. Confidential Information shall not include information that (a) is already known prior to the disclosure by Bfore.ai; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to Customer, under any legal obligation of confidentiality; or (e) Customer receives written permission from Bfore.ai for the right to disclose any Confidential Information.
Notwithstanding the above, this Section shall not prohibit Customer from disclosing Confidential Information to the extent required by applicable law, rule or regulation or the rules and regulations of the SEC or any national securities exchange; provided that Customer gives Bfore.ai prior written notice, if practicable, and reasonably cooperates with related requests of Bfore.ai. Further, notwithstanding anything to the contrary herein, if Customer provides Bfore.ai (or its affiliates or resellers) any feedback or suggestions regarding the Service or its other offerings, including potential improvements or changes (collectively, “Feedback”), Bfore.ai shall be free to use, disclose and otherwise exploit in any manner Feedback for any purpose, without any obligation of confidentiality with respect thereto. Upon expiration or termination of this Agreement, Customer shall promptly return or destroy Confidential Information; provided that, it may retain (i) a copy to track its related obligations hereunder, (ii) Confidential Information to the extent reasonably necessary for its surviving obligations hereunder or as required to be retained by applicable law, regulation and/or audit requirements, and (iii) backup or archival copies created and maintained in the ordinary course of business pursuant to its standard policies with respect automated archiving or back-up procedures, so long as in each of cases i-iii, for clarity, such retained information remains subject to the confidentiality obligations herein.
Disclaimer of warranty.
The service is accessed and used by customer hereunder “as-is.” Bfore.ai and its affiliates hereunder make no and disclaim all warranties, express, implied, statutory, or otherwise, including warranties (i) of noninfringement, merchantability and fitness for a particular purpose; or (ii) as to the accuracy, completeness, or reliability of any information obtained from the service.
Limitation of liability.
The cumulative aggregate liability of bfore.ai and its affiliates for all damages arising out of or relating to the service or this agreement, whether in contract, tort or otherwise, shall not exceed the total amount of fees paid to bfore.ai (or its affiliates) by customer, if any, under an applicable other agreement between bfore.ai (or its affiliates) and customer (or, if the applicable other agreement is instead between a bfore.ai reseller and customer, then the total amount of fees paid to bfore.ai by such reseller for customer’s use of the service) within the year preceding the claim.
Notwithstanding the foregoing, in no event will bfore.ai or its affiliates, licensors or other providers be liable to customer or any other party for damages for loss of data, lost profits, or any indirect, special, incidental or consequential damages arising out of or relating to the service or this agreement, even if bfore.ai (or any of its affiliates) has been advised of the possibility of such damages. Furthermore, all information provided by the service is provided “as-is” and bfore.ai (and its affiliates) shall not be liable for, and customer assumes all risk of, damages of any kind arising out of or relating to customer’s use thereof, including any reliance thereon.
Indemnification.
Customer will indemnify and hold harmless Bfore.ai, its affiliates, and their respective officers, directors, employees, agents, licensors and other providers, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs and expenses, including attorneys’ fees (collectively, “Liabilities”) arising out of or relating to Customer’s breach of this Agreement, or Customer’s use of the Service (but excluding any Liabilities to the extent caused by Bfore.ai’s or its affiliates’ gross negligence or willful misconduct). Bfore.ai reserves the right to assume the sole control of the defense and settlement of any claim, action, proceeding or suit for which Customer is obliged to indemnify Bfore.ai or its affiliates. Customer will cooperate with Bfore.ai with respect to such defense and settlement.
General
- Entire Agreement; Modification of Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof (provided that, for clarity, it does not supersede any applicable Other Agreement). If any provision of this Agreement conflicts with any provision of any Other Agreement, then, unless otherwise provided herein, this Agreement shall control. Customer agrees that the electronic text of this Agreement constitutes a writing and its assent to the terms and conditions hereof constitutes a “signing” for all purposes. Bfore.ai may from time to time amend this Agreement prospectively. If it does so, it will endeavor to notify Customer and will post the revised agreement on the Service or its website(s). Customer agrees that its continued access or use of the Service constitutes its agreement to the amended Agreement. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by Bfore.ai.
- Waiver. Any waiver of the provisions of this Agreement will be effective only if in writing and signed by Bfore.ai. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by Bfore.ai or Bfore.ai’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.
- Independent Contractor. Bfore.ai and its affiliates are independent contractors and not employees of Customer. At no time shall Customer make any commitments or incur any charges or expenses for or in the name of Bfore.ai (or its affiliates), or be considered the agent, partner, joint venturer, employer or employee of Bfore.ai (or its affiliates).
- Notices. All notices or other communications required to be given hereunder shall be in writing and may be delivered by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party. Notices to Bfore.ai should be sent to it at SAS PREDIMYA , 529 avenue des Figairettes, 34160 CAMPAGNE (FRANCE) (which address Bfore.ai may update by notice to Customer). Notices to Customer may be sent to any address or other contact point (including email) that Customer may provide to Bfore.ai or its affiliates or resellers.
- Assignment. Neither this Agreement, nor any rights or obligations hereunder, may be assigned, otherwise transferred or delegated by Customer without Bfore.ai’s prior written consent.
- Compliance with Laws. Customer will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S.A and E.U. export laws and those laws related to the protection of data privacy, and proper use of financial and personally identifiable information. Without limiting the foregoing or any other Customer restrictions or obligations herein, Customer represents and warrants that, during the term of this Agreement: (A) it (i) will not engage, directly or indirectly, in activities prohibited by U.S. or E.U. export control regulation, or regulated by the International Traffic in Arms Regulations, including (a) the design or development of defense articles, (b) the provision of defense services, or (c) the development of nuclear facilities not licensed by the U.S. Government; chemical, biological, or nuclear weapons; or rocket, missile or unmanned aircraft systems, or (d) terrorist activities; (ii) is not a resident or organized under the laws of Cuba, Crimea, Iran, North Korea, Syria, or Sudan, or any other location prohibited by U.S. law; and (iii) is not, and is not owned or controlled by, a person or entity that is the subject of any sanctions administered or enforced by any relevant sanctions authority, including the Office of Foreign Assets Control of the U.S. Department of Treasury; and (B) it will not provide any information received from the Service to, or otherwise use the Service for the benefit of, any person or entity, the identity or activity of which would violate any of clauses (A)(i)-(A)(iii) above.
- Force Majeure. Neither Bfore.ai nor any of its affiliates will be responsible for any act or omission due to causes beyond its reasonable control, including acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”).
- Governing Law and Disputes.(A) Choice of Law. This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and interpreted and construed in accordance with the laws of the FRANCE, without regard to any conflict of law principles that would apply another law. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby excluded.
(B) Default Approach for Disputes. Except to the extent a Customer dispute is covered by Section 9.8(C) below, Customer hereby consents to jurisdiction and venue in Montpellier, FRANCE, and Customer shall not bring any suit, claim or other cause of action except in a court located in Montpellier, France.
(C) Approach for Disputes with Certain Customers. (I) This Section 9.8(C) applies to Customer disputes to the extent that either (a) the Customer’s principal place of business, or jurisdiction of incorporation/formation, is outside the United States in a country that is a signatory or ‘Contracting State’ to The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards (see http://www.newyorkconvention.org/countries), or (b) Bfore.ai opts, in its sole discretion, for the dispute to be covered by this Section 9.8(C). (II) Bfore.ai (and its affiliates) and Customer hereby consent to resolve any applicable dispute arising out of or related to this Agreement by submission of such dispute to binding and final arbitration in accordance with the Rules of Arbitration (the “Rules”) of the International Chamber of Commerce, by an arbitral tribunal composed of one or more arbitrators appointed in accordance with the Rules. Arbitration proceedings may be commenced by either party by providing written notice to the other party. All arbitration proceedings will be held in Montpellier, FRANCE (provided that proceedings may be conducted at another location or by telephone conference call with the consent of the parties and the arbitrator(s)). All arbitration proceedings will be conducted in the English or French language. The arbitrator(s) may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. The parties agree that the arbitrator(s) will be empowered to grant injunctive or other equitable relief, but will have no authority to award punitive damages. The above obligation to arbitrate shall extend to any claim by or against any affiliate, agent, officer, employee, director, manager, member or shareholder of a party. (III) Notwithstanding clause II above, (a) either party may initiate litigation in any court of competent jurisdiction seeking any preliminary or temporary remedy in equity, including the issuance of a preliminary or temporary injunction; and (b) judgment on the arbitration award granted in any arbitration hereunder may be entered in, and the parties shall have the right to seek enforcement thereof by, any court of competent jurisdiction (and any additional expenses incurred in enforcing the arbitration award will be charged against the party that resists its enforcement); and (c) the parties hereby consent to the non-exclusive jurisdiction of state court located in Montpellier, FRANCE, and waive any objections of improper venue or inconvenient forum, in connection with clauses (III)(a) or (III)(b) above.
- Non-Solicitation. Customer shall not directly or indirectly solicit, employ or engage any employee of Bfore.ai (or its affiliates) with whom it came into contact relating to the Service during the period of such contact and for one (1) year thereafter. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement. For purposes of the foregoing solicit shall not be deemed to mean: (a) circumstances where an employee of Bfore.ai (or its affiliates) initiates contact with Customer with regard to possible employment; or (b) general solicitations of employment not specifically targeted at employees of Bfore.ai (or its affiliates), including responses to general advertisements.
- Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.
- Survival. Any obligations that have accrued prior to termination or expiration, and the following provisions of this Agreement, shall survive any termination or expiration hereof: Sections 1(B) and Sections 2 through 9.
PreCrime Guarantee
Schedule
Contract Number: | |
Guarantee Holder Name: | |
Guarantee Holder Address: | |
Guarantee Period: | Effective Date:
Expiration Date: [Effective date + maximum 12 months] |
Guaranteed Thresholds: | False Positive Threshold: 0.5%
False Negative Threshold: 6% |
Brand add-on (if applicable) | Brand False Positive Threshold: 0.5%
Brand False Negative Threshold: 6% |
Guarantee Limit: | For the Intelligence Product, the lower of 10x the Annual Service Fee or EUR1,200,000
And, if applicable: For the Brand Product, the lower of 10x the Annual Service Fee or EUR240,000 In any event, the total Limit of this Guarantee is EUR1,440,000 |
General Provisions
The Parties understand and acknowledge that the General Terms and Conditions attached hereto are incorporated herein by reference, deemed a part of this Performance Guarantee and are binding and enforceable provisions of this Performance Guarantee. References to “this Performance Guarantee” or the use of the term “hereof” shall refer to this Performance Guarantee and the General Terms and Conditions attached hereto, taken as a whole.
This Performance Guarantee is an addendum to the Service Agreement (“Contract”) between BforeAI and Guarantee Holder. Words and phrases that have a meaning in the Contract will have the same meaning in this Performance Guarantee.
Throughout this Performance Guarantee, the words “you” and “your” refer to the Guarantee Holder indicated in the Performance Guarantee Schedule. The words “we”, “us” and “our” refer to BforeAI.
No coverage is provided under this Performance Guarantee for any loss or event that took place prior to the issuance of this Performance Guarantee. Unless otherwise indicated, this Performance Guarantee shall be in effect during the time period that the Contract is in effect. However, we may amend or discontinue this Performance Guarantee when we renew or extend the Contract.
Condition Precedent
The Service Fees have been received in full by us as set forth in the Contract before we have any liability to make any payments under this Performance Guarantee.
Coverage Summary
The following coverage applies for 12 months from the service start date as set forth on the invoice for the Contract. If the Performance Guarantee naturally expires, the Performance Guarantee may be mutually extended for another 12-month period. Any termination of the Contract automatically terminates the Performance Guarantee.
This Performance Guarantee assumes your cooperation. This Performance Guarantee does not cover loss arising from your failure to use due diligence and all reasonable means.
PERFORMANCE GUARANTEE INTELLIGENCE
We warrant to you that, over the term of the Guarantee Period, the Intelligence Product’s:
- False Positive Rate will not exceed the False Positive Threshold; and
- False Negative Rate will not exceed the False Negative Threshold.
A breach of the False Positive Threshold or a breach of the False Negative Threshold shall respectively be a False Positive Covered Event or a False Negative Covered Event.
If at the end of the Guarantee Period, subject to the terms and conditions of this Performance Guarantee, you suffer:
- A False Positive Covered Event, then we shall refund you [a multiple of] the Annual Service Fee; and/or
- A False Negative Covered Event, then we shall refund you [a multiple of] the Annual Service Fee.
The determination of whether a Domain is malicious or benign will be made at the time it is assessed by the Product.
PERFORMANCE GUARANTEE BRAND- OPTIONAL ADD-ON
We warrant to you that, for the Guarantee Period, the Brand Product’s:
- Brand False Positive Rate will not exceed the Brand False Positive Threshold; and
- Brand False Negative Rate will not exceed the Brand False Negative Threshold.
A breach of the Brand False Positive Threshold or a breach of the Brand False Negative Threshold shall respectively be a Brand False Positive Covered Event or a Brand False Negative Covered Event.
If at the end of the Guarantee Period, subject to the terms and conditions of this Performance Guarantee, your Customer suffers:
- A Brand False Positive Covered Event, then we shall refund you [a multiple of] the Brand Annual Service Fee; and/or
- A Brand False Negative Covered Event, then we shall refund you [a multiple of] the Brand Annual Service Fee.
The determination of whether a Domain is malicious or benign will be made at the time it is assessed by the Brand Product.
Notwithstanding anything to the contrary, in no event during the Guarantee Period shall the Guarantee Holder receive from the Guarantee Provider in aggregate more than the Guarantee Limit for the Intelligence Product and for the Brand Product.
Reimbursment Request Process
- If, at the expiration of the Guarantee Period, you suffer a Covered Event, you shall notify us by sending an email to [email protected], including all relevant evidence from the log of your security system, such as screenshots or files (“Notification”). We shall proceed to review the collected data and within 30 (thirty) business days after the Expiration Date of the Guarantee, subject to the terms and conditions of this Guarantee:
- determine your eligibility to receive a pay-out;
- request additional evidence of the Covered Event, if needed; and
- if eligible, notify you of the pay-out for the Covered Event (“Payment”) and make such Payment within 30 business days after the required internal verifications of such request have been cleared and approved.
- If a Notification arises out of an event that is later determined (i) to be inconsistent with the definitions of such events, or (ii) relates to any Exclusions in this Performance Guarantee, you shall immediately reimburse us in full for all Payments made by us.
Specific Exclusions
This Performance Guarantee shall not apply with respect of any of the following:
- False Negatives or False Positives, Brand False Negatives or Brand False Positives, related to, or arising from or in connection with a Pre-Existing Incident.
- False Negatives or False Positives, Brand False Negatives or Brand False Positives in connection with Domains which had been expressly identified as legitimate by the Guarantee Holder or where access to a Network was granted by representatives of the Guarantee Holder.
- The False Negatives or False Positives, Brand False Negatives or Brand False Positives related to, or taking place:
- Within a Guarantee Holder’s Network, Customer’s or Guarantee Holder’s Customer Network, Protected Domains or Customer’s Protected Domains which is not protected by the Product or Brand Product
- Where the Product or Brand Product is not fully implemented or installed.
- Where the interface to the security system is not correctly configured.
- Where the Product or Brand Product was not installed, used, or maintained in accordance with the Contract and any documentation provided to you.
- Any Material Change caused or contributed to by the Guarantee Holder, or Customer, unless agreed to by BforeAI in writing.
- False Negatives or False Positives, Brand False Negatives or Brand False Positives caused or exacerbated by a failure of the Guarantee Holder to follow BforeAI’s instructions or mitigation requests.
Technical Definitions
INTELLIGENCE GUARANTEE
- “Annual Service Fee” means the yearly fee paid by the Guarantee Holder as consideration for the Product, according to the Contract.
- “Domain” means an indicator shared by the Intelligence Product, e.g. domain.com as a format.
- “False Positive” means an error in binary classification in which the Product incorrectly indicates the presence of a Malicious Domain in the Guarantee Holder’s Protected Domains when it in fact was benign.
- “False Negative” means a Malicious Domain in the Guarantee Holder’s Protected Domains not alerted by the Product.
- “False Positive Rate” means the sum of all False Positives during the Guarantee Period (provided that no exclusions apply), divided by the total number of benign Domains in the Protected Domains during the Guarantee Period.
- “False Negative Rate” means the sum of all False Negatives during the Guarantee Period (provided that no exclusions apply), divided by the total number of Malicious Domains in the Protected Domains during the Guarantee Period.
- “Malicious Domain” means a Domain that is created and/or used for nefarious purposes as set forth in Annex 2 of this document.
- “Material Change” means any change in the installation, configuration or use of Network, Protected Domains, and/or the Products which materially increases the risk in probability, degree or frequency of a Covered Event.
- “Network” means interconnected electronic, wireless, web or similar systems used to process Data or information in analogue, digital, electronic, or wireless format including, but not limited to, computers, computer devices, data storage devices, back-up facilities, operating systems, control systems, network systems, Hardware, websites, email systems, intranet, Industrial Control Systems, SCADA Systems, and mobile devices.
- “Pre-Existing Incident” means any unauthorized access to the operating system or Network, or an endpoint connected to either another endpoint or the Network, resulting in the implantation of an attack in the Network that occurs either (1) before such Network is protected by the Product; or (2) before the Guarantee Holder’s inception of the Guarantee Period.
- “Product” means the BforeAI PreCrime Intelligence solution.
BRAND GUARANTEE
- “Brand Annual Service Fee” means the yearly fee paid by the Guarantee Holder as consideration for the Brand Product, according to the Contract.
- “Brand False Positive” means an error in one of either (a) the binary classification in which the Brand Product incorrectly indicates the presence of a Malicious Domain in the Protected Domains when it in fact was benign or (b) the binary classification in which the Brand Product incorrectly attributes (attribution to be solely determined by us) a Malicious Domain to the Guarantee Holder when in fact it should not have been attributed to the Guarantee Holder.
- “Brand False Negative” means one of either (a) a Malicious Domain in the Protected Domains not alerted by the Product or (b) a Malicious Domain incorrectly not attributed to the Guarantee Holder (attribution to be solely determined by us).
- “Brand False Positive Rate” means the sum of all Brand False Positives during the Guarantee Period (provided that no exclusions apply), divided by the total number of (a) benign Domains in the Customer’s Protected Domains during the Guarantee Period and (b) Domains not attributed to the Customer during the Guarantee Period.
- “Brand False Negative Rate” means the sum of all Brand False Negatives during the Guarantee Period (provided that no exclusions apply), divided by the total number of (a) Malicious Domains in the Customer’s Protected Domains identified during the Guarantee Period and (b) Domains attributed to the Customer during the Guarantee Period.
- “Brand Product” means the BforeAI PreCrime Brand solution.
“Protected Domains” means the Guarantee Holder’s group of Domains fully visible to and protected by the Product, functioning in accordance to BforeAI’s instructions. Any Domain that is not declared to the Product is not part of Guarantee Holder’s Protected Domains.
Performance Guarantee – Annex 1
General Exclusions
This Performance Guarantee does not apply for losses that directly or indirectly caused by the following events:
- A total or partial interruption or reduction in performance or use of power, heating, lighting, water, electricity, utility, internet or any other telecommunication including cable or satellite,
- Any malicious, reckless, fraudulent or intentional misbehavior, misconduct, whether by omission or commission of the Guarantee Provider or its representatives, including any grossly negligent breach of any applicable laws and regulations;
- Any radioactive, toxic, explosive or other hazardous or contaminating properties of any radioactive matter or any nuclear installation, reactor or other nuclear assembly or nuclear component thereof, including any weapon or device employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter or any chemical, biological, bio-chemical or electromagnetic weapon;
- Terrorism;
- War, invasion, acts of foreign enemies, hostilities or war-like operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion, military or usurped power, strike, riot, vandalism, malicious mischief;
- Cyber Incident;
- A Communicable Disease or the fear or threat (whether actual or perceived) of a Communicable Disease; all regardless of any other cause or event contributing concurrently or in any other sequence to the loss, damage, costs or liability;
- Any natural catastrophes or events caused by natural forces, including but not limited to flood, drought, hail, extreme and unusual heat, solar flares, extreme and unusual cold, snow/frost/ice, windstorm, lightning, tornados, other extreme weather events, tsunamis, rising or falling water levels, earth movement, volcanic eruption, wildfires, and other natural catastrophes.
Additional Conditions To The Performance Guarantee
- Termination
This Performance Guarantee shall be terminated with immediate effect if one or more of the following events occur:
- You become bankrupt or file for bankruptcy;
- You make or have made a knowingly false or fraudulent Notification under this Performance Guarantee;
- You are more than ten (10) working days late in any of your payment obligations to us.
- Rights of Recovery
The rights of recovery apply.
- Transferability
Neither party may assign its rights or obligations under this Guarantee without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Guarantee may be assigned by either party in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Guarantee relates. This Guarantee is binding upon and inures to the benefit of the Parties and their respective successors and assigns..
- Merger Clause
This Performance Guarantee constitutes the entire agreement between you and us concerning the subject matter of this Performance Guarantee and it supersedes any prior or concurrent proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, this Performance Guarantee is in addition to the Contract and except as expressly set forth herein, nothing in this Performance Guarantee is intended to supersede, modify or amend the Contract.
- Limitation of Liability
IN NO EVENT WILL WE OR OUR SUPPLIERS BE LIABLE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, LOST DATA, DATA RESTORATION, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE; AND IN NO EVENT SHALL OUR LIABILITY UNDER OR ARISING FROM THIS PERFORMANCE GUARANTEE EXCEED THE LIMITS AS SET FORTH IN THE GUARANTEE SCHEDULE ABOVE FOR THE GUARANTEE PERIOD.
- Law/Jurisdiction
This Performance Guarantee will be governed by and construed in accordance with the laws of England and Wales without giving effect to any principles of conflict of laws. Any legal action or proceeding arising under this Performance Guarantee will be brough exclusively in the federal or state courts located in England and Wales and the Parties irrevocably consent to the personal jurisdiction and venue therein
Used Terms And Their Definitions
- “Communicable Disease” means any disease which can be transmitted by means of any substance or agent from any organism to another organism where:
- the substance or agent includes, but is not limited to, a virus, bacterium, parasite or other organism or any variation thereof, whether deemed living or not; and
- the method of transmission, whether direct or indirect, includes but is not limited to, airborne transmission, bodily fluid transmission, transmission from or to any surface or object, solid, liquid or gas or between organisms; and
- the disease, substance or agent can cause or threaten damage to human health or human welfare or can cause or threaten damage to, deterioration of, loss of value of, marketability of or loss of use of property.
- “Computer System” means any computer, hardware, information technology and communications system or electronic device − including any similar system or any configuration of the aforementioned and including any associated input, output or Electronic Data storage device, networking equipment or back up facility − owned or used by the Guarantee Provider.
- “Contract” means either the Purchase Order (PO), Service Level Agreement (SLA), End User License Agreement (EULA) or any other agreement between BforeAI and Guarantee Holder to which this Performance Guarantee attaches.
- “Cyber Incident” includes
- unauthorized, intentional or malicious acts or omissions (including by any employee of the Guarantee Provider), regardless of time and place, or the threat or hoax thereof involving access to, processing of, use of or operation of any Computer System and/or
- Malware or Similar Mechanism and/or
- any unintentional or unplanned – whole or partial – outage of the Guarantee Provider’s Computer System,
- any unintentional or unplanned change to any Computer system or any Electronic Data;
- affecting access to, processing of, use of or operation of any Computer System or any Electronic Data by any person or group(s) of persons
- “Electronic Data” means facts, concepts and information converted to a form useable for communications, interpretation or processing by electronic and electromechanical data processing or electronically controlled equipment and includes programs, software and other coded instructions for the processing and manipulation of data or the direction and manipulation of such equipment owned or used by the Guarantee Provider.
- “Malware or Similar Mechanism” means any program code, programming instruction or other set of instructions intentionally constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files or operations (whether involving self-replication or not), including but not limited to Virus, Trojan Horses, Worms, Logic Bombs or Denial of Service Attack.
- “Terrorism” means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear.
Performance Guarantee – Annex 2
Definition Of Malicious Domain Purposes
Malware: Websites and other servers that host malicious software, drive-by downloads/ exploits, mobile threats, and more.
Command and Control (C2) Callbacks: Compromised devices get instructions and malware downloads by communicating with attackers’ infrastructure.
Phishing Attacks: Fraudulent websites that aim to trick users into handing over personal or financial information.
Cryptomining: Cryptomining allows organizations to control cryptominer access to mining pools and web miners.
Potentially Harmful Domains: Domains that exhibit suspicious behaviour and may be part of an attack.
Adware: Adware, or advertising-supported software, is any software package that automatically renders advertisements in order to generate revenue for the author. The advertisements may be in the user interface of the software or presented in the web browser. Adware may cause tabs to open automatically that display advertising, make changes to the home page settings in your web browser, offer ad-supported links from search engines, or initiate redirects to advertising websites.
Botnet: A botnet is a number of Internet-connected systems infected with malware that communicate and coordinate their actions received from command and control (C&C) servers. The infected systems are referred to as bots. The most typical uses of botnets are DDoS attacks on selected targets and the propagation of spam.
Browser Hijacker: A Browser Hijacker is any malicious code that modifies a web browser’s settings without a user’s permission, to inject unwanted advertising into the user’s browser or redirect to fraudulent or malicious sites. It may replace the existing home page, error page, or search page with its own. It can also redirect web requests to unwanted destinations.
Bulletproof Hosting: Bulletproof hosting is a service provided by some domain hosting or web hosting firms that allows their customer considerable leniency in the kinds of material they may upload and distribute. This type of hosting is often used for spamming, phishing, and other illegal cyber activities.
Cryptojacking: Cryptojacking is malicious cryptomining and the covert use of a systems computer resources to mine cryptocurrency. Cryptojacking is initiated by malware or through webcryptominers embedded in website code.
Drive-by Download: Any download that happens without a person’s consent or knowledge.
Dropper: A dropper is a program or malware component that has been designed to “install” some sort of malware (ransomware, backdoor, etc.) to a target system. The dropper may download the malware to the target machine once it is received from the command and control server or from other remote locations.
Exploit Kit: An exploit kit is a software kit designed to run on web servers with the purpose of identifying software vulnerabilities in client machines communicating with it, and discovering and exploiting vulnerabilities to upload and execute malicious code on the client.
Fast Flux Botnet: Fast flux is a DNS technique used by botnets to hide phishing and malware delivery sites behind an ever-changing network of compromised hosts acting as proxies. It can also refer to the combination of peer-to-peer networking, distributed command and control, web-based load balancing and proxy redirection used to make malware networks more resistant to discovery and counter-measures.
Information Stealer: An information stealer is a trojan that can harvest keystrokes, screenshots, network activity, and other information from systems where it is installed. It may also covertly monitor user behaviour and harvest personally identifiable information (PII) including names and passwords, chat programs, websites visited, and financial activity. It may also be capable of covertly collecting screenshots, video recordings, or have the ability to activate any connected camera or microphone. Collected information may be stored locally and later retrieved, or may be transmitted to a command and control server.
Loader: A loader is a type of malware or malicious code used in the loading of a second-stage malware payload onto a victim’s system. The loader is able to hide a malware payload inside the actual loader code instead of contacting a remote location to download a second-stage payload.
Malvertising: Malvertising involves injecting malicious or malware-laden advertisements into legitimate online advertising networks and webpages. Malvertising is often used in exploit kit redirection campaigns.
Mobile Trojan: A mobile trojan is a trojan designed to target and infect mobile phones running Android, iOS, Windows or other mobile operating systems.
Point-of-sale Malware: Point-of-sale malware (POS malware) is used by cybercriminals to target point of sale terminals with the intent to obtain credit card and debit card information by reading the device memory from the retail checkout point of sale system.
Ransomware: Ransomware is computer malware that installs covertly on a victim’s computer, encrypts files, and demands a ransom be paid to decrypt the files or to prevent the attacker from publishing the victim’s data publicly.
Remote Access Trojan (RAT): A Remote Access Trojan (RAT) is malware that allows covert surveillance or unauthorized access to a compromised system. RATs make use of specially configured communication protocols. The actions performed vary but follow typical trojan techniques of monitoring user behaviour, exfiltrating data, lateral movement, and more.
Rootkit: A rootkit is a collection of computer software, typically malicious, designed to enable access to a computer or areas of its software that would not otherwise be allowed (for example, to an unauthorized user) and often masks its existence or the existence of other software.
Scareware: Scareware is a form of malicious software or website that uses social engineering to give the perception of a threat in order to manipulate users into buying or installing unwanted software. Scareware misleads users by using fake alerts to trick them into believing there is malware on their computer and manipulates them into paying money for a fake malware removal tool or allowing an entity remote access to their system to clean the malware. Instead of remediation, the software or remote entity delivers malware to the computer.
Spam: Spam is an unwanted, unsolicited message that can be received through email or SMS texts. Spam is sent to many users in bulk. It is often sent through the means of a botnet. Spam can contain advertising, scams, or soliciting. In the case of malspam or malicious spam, it contains malicious attachments or links that lead to malware.
Spyware: Spyware gathers information about a person or organization without their knowledge. It may assert control over a computer without the user’s knowledge.
Trojan: A Trojan is malware which is used to compromise a system by misleading users of its true intent. Trojans typically create a backdoor, exfiltrate personal information, and can deliver additional malicious payloads.
Worm: A computer worm is malware that replicates itself in order to spread to other computers. Worms typically spread through the computer network or removable storage devices that are shared between systems, relying on security failures on the target computer.