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These Trial Cloud Terms of Service (“Agreement”) govern your (“Customer” or “You”) use of the Service. This Agreement applies only to free access to the Service. If Customer later purchases paid Services pursuant to an Order Form, such use will be governed by the then-current master subscription agreement or other applicable signed terms. By clicking a box indicating your acceptance of this Agreement, (e.g., “I Agree,” “Accept Terms,” “I Understand and Agree”) or similar button on the Service registration page, or executing an Order, as further described below, or by otherwise accessing the Service, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Embed Security, Inc., (“Embed,” “we,” “our,” or “us”, Embed and Customer may each be referred to separately as, a “Party,” or together as, the “Parties”), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you represent, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “Customer,” will refer to the entity you are representing.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND IS NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
These free Services are provided without charge and without any commitment to future availability. Customer acknowledges that Embed may modify, suspend, or discontinue the Service at any time without notice.
We may update this Agreement from time to time in accordance with Section 11.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
“Customer Data” means (i) User authentication information, such as name and email address, (ii) the Input, and (iii) any other information, data, or content that Customer provides to Embed in connection with its use of the Service.
“Documentation” means any written or online documentation regarding the Service made available by Embed.
“Enrichment Data” means third party data Embed uses to provide added context as part of Output, such as data related to potential threats, including URLs and IP addresses.
“Input” means alerts or notifications that Customer makes available to Embed, such as .eml files, AWS GuardDuty alerts, and Endpoint Detection Response alerts.
“Order Form” means each order document, submitted to Embed by Customer and accepted by Embed, to purchase a Subscription setting forth, at a minimum the start date and end date of the Subscription Term, number of Users, and agreed upon pricing. Each Order Form, when executed by the parties, will be incorporated herein by reference.
“Output” means the summarized findings that are provided to and solely for Customer via Customer’s use of the Service, such as Embed’s recommendation(s) for responding to an alert.
“Service” means Embed’s proprietary, Software-as-a-Service solution for use by Customer for the purpose of investigating cybersecurity events. The Service includes various proprietary features, the Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.
“Support” means the technical support services that are included with the cost of the Subscription.
“Usage Data” means information regarding Customer’s use of the Service as well as performance-related data. Usage Data is not Customer Data and does not contain any information that could identify Customer or any individual.
“Users” means individuals or entities that are authorized by Customer to use the Service.
2.1 Right to Access and Use Service. Subject to the terms of this Agreement, Embed grants Customer a right to use (i) the Service during each Term for up to the number of alerts and other metrics (such as Users or overall consumption) that may be identified on the Order Form (if applicable) (the “Subscription”), and (ii) the Output during and after the Term for its internal business purposes only.
2.2 Restrictions. Customer will not: (i) access (or allow a third party to access) the Service in order to monitor the availability, security, performance, or functionality of the Service, or for any other benchmarking or competitive purposes without Embed’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Service available to any third party, except to a third party that manages Customer’s computing environment; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Service, or any of their components; (iv) use the Service to conduct any fraudulent, malicious, or illegal activities (each of (i) through (iv), a “Prohibited Use”).
3.1 General. Embed is responsible for providing the Service in conformance with this Agreement, the Order Form(s) (if applicable), and applicable Documentation.
3.2 Availability. Embed uses its commercially reasonable efforts to ensure that the Service is available 24 hours a day, seven days a week.
3.3 Support. If Customer experiences any errors, bugs, or other issues in its use of the Service, then Embed will provide Support in order to resolve the issue or provide a suitable workaround.
5.1 Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Embed’s Confidential Information includes the Service and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the Receiving Party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
5.2 Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
5.3 Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
7.1 Embed Property. Embed owns and retains all right, title, and interest in and to the (i) Service, (ii) Usage Data and (iii) the Output. Embed will not share the Output with any third party and will protect the Output with at least the same level of security protection as it uses to protect Customer Data and Embed’s own proprietary information. As between Embed and Customer, Embeds retains all right, title, and interest in and to the Enrichment Data. Except for the limited license granted to Customer in Section 2.1, Embed does not by means of this Agreement or otherwise transfer any rights in the Service to Customer, and Customer will take no action inconsistent with Embed’s intellectual property rights in the Service.
7.2 Feedback. Customer may provide comments, suggestions and recommendations to Embed regarding the Service such as modifications, enhancements, improvements and other changes (collectively, “Feedback”). Embed may freely use and exploit any such Feedback without any obligation to Customer.
7.3 Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means of this Agreement or otherwise transfer any rights in the Customer Data to Embed, except for the limited license set forth in Section 7.1.
8.1 Mutual Representations and Warranties. Customer represents and warrants it has validly entered into this Agreement and has the legal power to do so and federal, state, and local laws and regulations in respect to its performance of its obligations hereunder.
8.2 Disclaimer. The Service is provided “as is” to the fullest extent permitted by law. Embed and its licensors expressly disclaim all other warranties, express or implied, including warranties of performance, merchantability, fitness for any particular purposes, and non-infringement. Embed does not warrant that the Service (i) is error-free, (ii) will perform uninterrupted, or (iii) will meet Customer’s requirements.
9.1 By Customer. Customer will indemnify, defend, and hold harmless Embed, its Affiliates, and their respective owners, directors, members, officers, and employees (together, the “Embed Indemnitees”) from and against any Claim against the Embed Indemnitees related to (i) Customer’s or a User’s engaging in a Prohibited Use, and (ii) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Embed Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Embed (a) gives Customer prompt written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Embed’s prior written consent which will not be unreasonably withheld), and (c) provides to Customer all reasonable assistance, at Customer’s request and expense.
10.1 EMBED, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE CUSTOMER HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICE LIABILITY OR OTHERWISE.
10.2 IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EMBED, OR ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE CUSTOMER FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES.
10.3 Basis of the Bargain. Customer acknowledges and agrees that the Service is provided free of charge, and that Embed’s decision to provide the Service without fees is conditioned on the enforceability of the disclaimers, limitations, and exclusions of liability set forth in this Agreement. These provisions allocate risk between the Parties and form an essential basis of the bargain. If Customer does not agree to these terms, Customer may not access or use the Service.
This Agreement is the entire agreement between Customer and Embed and supersedes all prior agreements and understandings concerning the subject matter hereof. Embed may modify this Agreement from time to time. If a modification materially impacts this Agreement, Embed will use reasonable efforts to notify Customer through the Service, the website and/or in accordance with this Agreement. Any changes to this Agreement posted on the website will be effective if Customer assents to such changes or upon Customer’s renewal Term, except changes required by law or as necessary for new features will immediately become effective to the extent necessary to comply with such law or as required to use such new features. If Customer objects to the updated Agreement, as Customer’s exclusive remedy and without penalty, Customer may choose not to continue using the Service.Customer and Embed are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Embed. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by electronic mail to the address on file with the party providing the notice. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Customer may not assign this Agreement without the prior written consent of Embed. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals.
6. CUSTOMER DATA
6.1 Customer Data. Customer grants Embed a limited license during the Term to use Customer Data to provide the Service and gather Usage Data. Embed uses Usage Data to improve the Service, including the accuracy of investigations.