Subject to Your compliance with these Terms, OPSWAT may provide You with documentation describing the results of the Assessment (the “Assessment Deliverables”) for your personal, non-commercial use.

You agree that You may not use or attempt to:

• Use the Assessment Deliverables in any way that breaches any applicable local, national, or international law or regulation;
• Use the Assessment Deliverables in any way which could infringe the rights or interests of OPSWAT, OPSWAT’s licensors, suppliers, or subcontractors (collectively, the “Third-Party Providers”), or any other third party;
• Copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, or distribute in any way material or information from the Assessment Deliverables, including, without limitation, using the Assessment Deliverables in any way that could directly or indirectly harm, compete with, or otherwise hinder OPSWAT’s Services;
• Transfer any rights granted to You to the Assessment Deliverables under the Terms;
• Use the Assessment Deliverables for any illegal activity or output, or in any way that exposes OPSWAT, the Third-Party Providers, or You to harm;
• Use any information, text, graphics, URLs, files, or other materials incorporated in the Assessment Deliverables (“Assessment Data”), except as specifically permitted herein; or
• Use the Assessment Deliverables except as expressly allowed under these Terms.

To participate in the Assessment, OPSWAT requires You to provide the names and contact information for any of Your users participating in the Assessment, along with any information necessary to conduct the Assessment, which may include information relating to Your IT or OT environment. You agree to provide us with accurate, complete, and updated information. You are entirely responsible and liable for all information You provide to OPSWAT or otherwise allow OPSWAT to process.

OPSWAT may engage subcontractors to perform any or all parts of the Assessment. OPSWAT shall identify any subcontractors used in performing the Assessment in its list of subprocessors and subcontractors located at https://www.opswat.com/legal/subprocessors (“Subprocessor List”). OPSWAT, in its sole discretion, may replace or remove subcontractors used to provide the Services by updating the Subprocessor List. You may subscribe to updates to the Subprocessor List via RSS feed.

OPSWAT’s Privacy Policy located at https://www.opswat.com/legal/privacy-policy (“Privacy Policy”) identifies how OPSWAT collects, stores, protects, and uses certain information collected about You to perform the Assessment and provide the Assessment Deliverables. You acknowledge Your participation in the Assessment is subject to the Privacy Policy, and You agree to the Privacy Policy.

The Data Processing Addendum located at https://www.opswat.com/legal is incorporated by reference into these Terms if applicable laws require OPSWAT to enter into an agreement with You regarding OPSWAT’s processing of information relating to identified or identifiable individuals (“Personal Data”).

If You choose to participate in the Assessment, You confirm that any information processed by OPSWAT or its Third-Party Providers during the Assessment, along with any emails, associated files, hashes, and associated metadata, including hash values, scan results, application intelligence, vulnerability information, and other data processed by OPSWAT or its Third-Party Providers on Your behalf as a part of the Assessment (“Your Content”) complies with these Terms. You attest that You are either the original owner of Your Content or You have the necessary rights and permissions to submit and share Your Content with OPSWAT and its Third-Party Providers.

You understand that if You participate in the Assessment, Your Content is shared with Third-Party Providers for OPSWAT to perform the Assessment and provide the Assessment Deliverables to You.

While You retain any ownership rights in the original material contained in Your Content, when You make Your Content available to OPSWAT and its Third-Party Providers, You give OPSWAT and its Third-Party Providers a non-exclusive, worldwide, and royalty-free license to host, store, and use Your Content for the purpose of performing the Assessment and providing You with the Assessment Deliverables.

YOU FURTHER AGREE THAT YOU WILL NOT MAKE AVAILABLE TO OPSWAT AND ITS THIRD-PARTY PROVIDERS ANY MATERIALS, INFORMATION, OR DATA CONTAINING CONFIDENTIAL OR COMMERCIALLY SENSITIVE DATA OR PERSONAL DATA OF ANY INDIVIDUAL WITHOUT LAWFUL PERMISSION.

Although OPSWAT has no obligation to monitor use of Your Content or the Services, OPSWAT may monitor the Services to detect and prevent fraudulent activity or violations of these Terms and retain absolute discretion to remove Your Content at any time and for any reason without notice.

IF YOU DO NOT WANT YOUR CONTENT PROCESSED IN THE MANNER SET OUT IN THESE TERMS OR IN THE PRIVACY POLICY, DO NOT PARTICIPATE IN THE ASSESSMENT.

All rights, title, and interest in and to the Assessment and the Services (excluding Your Content) are and will remain the exclusive property of OPSWAT and its Third-Party Providers. Nothing in these Terms should be construed as conferring by implication or otherwise any license or right under any copyright, patent, trademark, or other intellectual property or proprietary interest of OPSWAT, its Third-Party Providers, or any other third party. OPSWAT reserves the right to suspend or terminate the Assessment and delete Your Content without prior notice and at OPSWAT’s sole discretion. Nothing in these Terms gives You a right to use the OPSWAT’s trademarks, logos, domain names, or other OPSWAT identifiers.

Any feedback, comments, or suggestions You may provide to OPSWAT is entirely voluntary. OPSWAT is free to use any feedback, comments or suggestions as OPSWAT sees fit and without obligation to You.

Please report alleged copyright violations to:

OPSWAT Inc.
Attn: Legal Department
5411 Skycenter Dr., Suite 900
Tampa, FL 33607
Email: legal@opswat.com

The Assessment provided by OPSWAT is constantly evolving, and the form and nature of the Assessment that OPSWAT provides may change from time to time without prior notice to You. Any changes to the Assessment are subject to the Terms then in effect. In addition, OPSWAT may stop (permanently or temporarily) providing the Assessment without providing prior notice.

The Assessment Deliverables may contain links to third-party websites or resources. You acknowledge and agree that OPSWAT is not responsible or liable for: (a) the availability or accuracy of such websites or resources; or (b) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by OPSWAT of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from Your use of any such websites or resources.

You agree to indemnify, defend, and hold harmless OPSWAT, its affiliates, and its and their respective officers, directors, employees, agents, and Third-Party Providers from and against any and all claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys’ fees) that such parties may incur arising from Your use of the Assessment Deliverables or violation of these Terms. OPSWAT reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with OPSWAT’s defense of such claim, and in no event may You agree to any settlement affecting OPSWAT without OPSWAT’s written consent.

YOUR PARTICIPATION IN THE ASSESSMENT AND USE OF THE ASSESSMENT DELIVERABLES IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE ASSESSMENT AND ASSESSMENT DELIVERABLES ARE PROVIDED TO YOU ON AN "AS IS" BASIS WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, OPSWAT AND ITS THIRD-PARTY PROVIDERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

NEITHER OPSWAT NOR ITS THIRD-PARTY PROVIDERS WARRANT OR GUARANTEE THAT THE ASSESSMENT OR THE ASSESSMENT DELIVERABLES ARE ACCURATE, RELIABLE OR CORRECT; WILL MEET YOUR REQUIREMENTS; OR WILL BE UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION. FURTHERMORE, NEITHER OPSWAT NOR ITS THIRD-PARTY PROVIDERS WARRANT OR GUARANTEE THAT ANY DEFECTS OR ERRORS IN THE ASSESSMENT OR THE ASSESSMENT DELIVERABLES WILL BE CORRECTED.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPSWAT, ITS AFFILIATES, ITS THIRD-PARTY PROVIDERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, OR GOODWILL, RESULTING FROM (a) YOUR PARTICIPATION IN THE ASSESSMENT; (b) YOUR USE OF THE ASSESSMENT DELIVERABLES AND/OR THE ASSESSMENT DATA; (c) YOUR CONTENT; AND (d) UNAUTHORISED USE OR ALTERATION OF THE ASSESSMENT DELIVERABLES AND ASSESSMENT DATA, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY AND EVEN IF OPSWAT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT A COMPLETE LIMTATION OF DAMAGES AS SET FORTH HEREIN, YOU AGREE THAT YOUR DAMAGES SHALL BE LIMITED TO ONE U.S. DOLLAR (US $1.00). THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Entire Agreement; Amendment. These Terms and the Privacy Policy constitute the entire agreement between the parties and supersedes all prior agreements or communications between the parties with regard to the subject matter. OPSWAT may update and amend these Terms from time to time and any changes will be posted on OPSWAT’s website at https://www.opswat.com/legal. By continuing to participate in the Assessment after any changes become effective, You agree to be bound by the revised Terms.

Waiver; Severability. The failure of OPSWAT to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.

Governing Law; Venue; Equitable Relief. These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Florida, without reference to its choice of law rules. In the event of any dispute related to these Terms that is not subject to binding arbitration (as stated in the Mandatory Arbitration and Class Actions Waiver section below), the state and federal courts located in Tampa, Florida will have exclusive jurisdiction over any claim arising from, or related to, these Terms. The foregoing does not restrict OPSWAT from enforcing a judgment or seeking equitable relief from any court of competent jurisdiction.

Assignment. You will not, directly, indirectly, by operation of law or otherwise, assign or transfer all or part of these Terms or its rights or delegate performance of its duties without the prior written consent of OPSWAT. Any attempted assignment or transfer by You without consent shall be void and of no effect.

Third-Party Beneficiary. Except as otherwise stated in these Terms with respect to Third-Party Providers, nothing in these Terms shall confer, or is intended to confer, on any third party any benefit or the right to enforce these Terms.

Relationship. These Terms do not create an association, joint venture, or partnership between OPSWAT and You or impose any partnership liability upon OPSWAT or You.

MANDATORY ARBITRATION AND CLASS ACTIONS WAIVER (“WAIVER”)

READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

DO NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THESE TERMS WHEN DECIDING WHETHER TO AGREE TO THIS WAIVER. THESE TERMS ARE NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION OR WAIVER OF CLASS ACTIONS. CONDUCT FURTHER RESEARCH AND CONSULT WITH OTHERS, INCLUDING BUT NOT LIMITED TO AN ATTORNEY, REGARDING THE CONSEQUENCES.

You agree these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1 et seq. governs the interpretation and enforcement of these arbitration provisions, not state law. This Waiver is intended to be interpreted broadly and, subject to the Excluded Claims, governs claims between OPSWAT and You, including but not limited to claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract (including formation, performance, breach), tort (including intentional tort), statute, fraud, misrepresentation, or other legal theory, including consumer protection, advertising, common law; claims arising out of or relating to these Terms, Your participation in the Assessment, or Your use of the Assessment Deliverables; claims that arose before these Terms; and claims that may arise after the termination or expiration of these Terms.

Excluded Claims. Excluded Claims are Claims that can be resolved in the Small Claims Courts located in (1) San Francisco, California, U.S.A.: https://www.sfsuperiorcourt.org/divisions/small-claims, Department 506, 400 McAllister Street, San Francisco, CA 94102-4514 or (2) Tampa, Florida, U.S.A.: https://www.hillsclerk.com/Court-Services, Hillsborough County Courthouse, 800 E. Twiggs St. Tampa, FL 33602, Tel: (813) 276-8100 (“Excluded Claims”).

Initial Dispute Resolution. If You have a Claim involving OPSWAT, You agree that before taking formal action, You will email OPSWAT at Legal@opswat.com, and provide a written description of the Claim and Your contact information. The parties agree to use reasonable efforts to settle any Claim, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration. If the parties do not reach a mutually agreed solution within thirty (30) days from the time informal dispute resolution is initiated under the above Initial Dispute Resolution paragraph, either party may initiate binding arbitration as the sole means to resolve claims (except for Excluded Claims). Except for Excluded Claims, all claims arising out of or relating to these Terms, the parties’ relationship with each other, Your participation in the Assessment, and/or Your use of the Assessment Deliverables shall be finally settled by binding arbitration administered by JAMS (or, if unavailable, such other similar group that can provide former judges as arbiters) in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000, in effect at the time the arbitration is initiated, excluding rules or procedures governing or permitting class actions, by a single arbiter who is (a) fluent in written and spoken English, and (b) skilled and experienced with software, software-as-a-service applications, and Internet services.

Confidentiality. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Venue. The place of arbitration may be (a) virtual, (b) San Francisco, California, U.S.A., or (c) Tampa, Florida, U.S.A. You and OPSWAT agree to submit to the personal jurisdiction of federal or state courts located in San Francisco County, California, U.S.A. or Tampa, Florida, U.S.A. in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all claims (except for the Excluded Claims) arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, any unconscionability challenge, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief available in a court under law or in equity, subject to the LIMITATION OF LIABILITY section in these Terms. The arbitrator’s award shall be written and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable laws.

Award. The arbitrator shall award to the prevailing party, if any, costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If a party prevails on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.

No Jury or Court Trial. The parties understand that, absent this Waiver, they would have the right to sue in court and have a jury or court trial. They understand that, in some instances, arbitration costs could exceed litigation costs and the right to discovery may be more limited in arbitration than in court.

CLASS ACTION WAIVER. The parties agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND OPSWAT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. NEITHER YOU NOR OPSWAT WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER OPSWAT CUSTOMERS OR USERS IN COURT OR IN ARBITRATION. You cannot seek relief that will affect other OPSWAT customers or users. The arbitral tribunal has no power to consider the enforceability of this Class Action Waiver and any challenge to the Class Action Waiver may only be raised in a court of competent jurisdiction. If any court determines this Class Action Waiver is void or unenforceable for any reason or an arbitration can proceed on a class basis, then the arbitration provisions set forth in this Waiver shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate claims.

30-Day Right to Opt Out. You may opt out and not be bound by this Waiver by sending written notice (including name, physical address, email, telephone, and a clear statement that You want to opt out of this Waiver) to opt out to OPSWAT Inc., 5411 Skycenter Dr., Suite 900, Tampa, FL 33607, with a copy to: Legal@opswat.com, Attn: ARBITRATION AND CLASS ACTIONS WAIVER OPT-OUT, within thirty (30) days of Your acceptance of these Terms. Otherwise, You shall be bound to arbitrate claims in accordance with this Waiver. If You opt out of this Waiver, OPSWAT also will not be bound by this Waiver.