THIS TERMS OF SERVICE AGREEMENT ("Terms") is made between:
Pistachio AS, a company registered in Norway, under company number 929 575 717, whose registered office is at Karvesvingen 7, 0579, Oslo ("Pistachio"); and
The company purchasing the services of Pistachio AS as set out in the Order Form (“Customer”).
(Pistachio and Customer may each be referred to as a "Party" and collectively the "Parties".)
WHEREAS:
Pistachio AS offers an online platform that facilitates a range of cybersecurity awareness training and attack simulation services ("Pistachio Platform");
Pistachio grants Customer access to the Pistachio Platform (including any new versions of the Pistachio Platform, which are made available by Pistachio from time to time) in accordance with the terms and conditions set out in this Agreement.
THEREFORE, in consideration of the premises and the mutual covenants contained in these Terms, the parties agree as follows:
1. INTERPRETATION
1.1 In addition to other terms that may be defined elsewhere in these Terms, the following expressions shall have the meanings set forth in the tables below:
“Confidential Information” means any information that is clearly labelled or identified as confidential or ought to reasonably be treated as being confidential. Confidential Information includes this Agreement, any materials and content made available in the Pistachio Platform and any Third Party Content (other than anonymised or aggregated derivatives of Third Party Content), excluding any information which (i) is or becomes publicly known other than through a breach of this Agreement or other obligation of confidentiality; (ii) was in the receiving Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the receiving Party and that independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
"Intellectual Property Rights" means all copyright and related rights, patents, rights to inventions, utility models, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
"Order Form" means the description of purchase set out in coordination with Pistachio.
"Third Party Content" means any data, information, content including trademarks, logos, software or other Intellectual Property Rights of a third party, including any of which is accessed by Customer’s use of the Pistachio Platform.
"Users" means the person(s) within Customer's organisation who is registered and authorized to use the Pistachio Platform.
"Effective Date" means the "Agreement Start Date" as specified in the Order Form.
2. USE OF THE PISTACHIO PLATFORM
2.1 Pistachio hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Pistachio Platform in accordance with these Terms and the information made available within the Pistachio Platform.
2.2 Pistachio shall use its best efforts to ensure (i) that the Pistachio Platform shall be uninterrupted or error-free; (ii) that major defects will be corrected; (iii) that there are no viruses or other harmful components; and (iv) that the security methods employed shall be sufficient.
2.3 Customer acknowledges and agrees that Pistachio without liability may (i) modify, suspend or discontinue any part of the Pistachio Platform or otherwise make any changes it considers desirable to the Pistachio Platform; and (ii) collect and use Customer's user data from which any natural person cannot, directly or indirectly, be identified, for benchmarking, commercial, statistical, analytical and/or marketing purposes.
2.4 Except as expressly set out in these Terms, neither Customer nor Users may attempt, permit or enable others to: (i) Sell, lease, rent, copy, and/or provide access to the Pistachio Platform to any third party; (ii) violate any applicable laws or regulations while using the Pistachio Platform or upload, make available and/or share any information which violates the rights of third parties, including but not limited to, any Intellectual Property Rights or the privacy rights of third parties, or contains any false, fraudulent, illegal, harmful and/or defamatory material; (iii) scan and/or test the vulnerability of the Pistachio Platform or breach, disable, circumvent, remove or damage any authentication or security measures or any other technical restrictions on the Pistachio Platform; (iv) reverse engineer or otherwise use the Pistachio Platform in any way to develop, test, enhance or calibrate any models, system, or software that are similar to any features of the Pistachio Platform; or (v) remove any proprietary notices attached to the Pistachio Platform and any associated materials and content.
3. FEES
3.1 All prices are set out in the Order Form. Payment shall be made within fourteen (14) calendar days of the invoice date.
3.2 If Customer fails to make payment by the agreed time, Pistachio is entitled to claim interest on any overdue amount, pursuant to the Act No. 100 of 17 December 1976 relating to Interest on Overdue Payments, etc. (Late Payment Interest Act).
4. INTELLECTUAL PROPERTY RIGHTS AND THIRD PARTY CONTENT
4.1 Customer acknowledges and agrees that all Intellectual Property Rights related to the Pistachio Platform is under the sole and exclusive ownership of Pistachio AS and its licensors, and that nothing in these Terms transfer or grant any rights in any Intellectual Property Rights related to the Pistachio Platform, other than the limited right to access and use the Pistachio Platform or any associated materials and content in accordance with these Terms.
4.2 Pistachio may host Third Party Content that is accessed by Customer's use of the Pistachio Platform. Any Intellectual Property Rights in the Third Party Content shall remain with its owners or licensors.
4.3 Pistachio ('Indemnifier') agrees to indemnify, defend, and hold harmless Customer ('Indemnitee') from and against any and all claims, demands, suits, actions, proceedings, losses, damages, costs, fees (including reasonable attorneys' fees), and expenses arising out of or relating to any allegation or claim that the use of the Pistachio Platform infringes or misappropriates any third-party intellectual property rights. This indemnification obligation is contingent upon the Indemnitee: (i) promptly notifying the Indemnifier in writing of any such claim; (ii) giving the Indemnifier sole control of the defense and any settlement negotiations; and (iii) cooperating and, at Indemnifier's request and expense, assisting in such defense.
5. CONFIDENTIALITY
5.1 Each Party shall hold the other’s Confidential Information in confidence and not make such Confidential Information available to any third party, unless agreed in writing by the disclosing Party. Neither Party shall use the other’s Confidential Information for any purpose other than the implementation of these Terms.
5.2 Each party shall take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, agents or independent contractors in breach of the terms of these Terms.
5.3 This clause 5 shall survive termination of these Terms for a period of five (5) years.
6. DISCLAIMER AND LIMITATION OF LIABILITY
6.1 Customer assumes sole responsibility for its and Users' use of the Pistachio Platform and for the results of, or conclusions drawn from, such use. Customer acknowledge and agrees that the Pistachio Platform is provided for general information and training purposes only. Customer must obtain professional or specialist advice before taking, or refraining from taking, any action based on information obtained through the Pistachio Platform. Customer is solely responsible for ensuring that it has sufficient and compatible hardware, software and internet connectivity necessary for use of the Pistachio Platform.
6.2 The Pistachio Platform is provided "as is" and "as available". Pistachio disclaims all warranties, representations and conditions, express or implied, including, but not limited to, warranties as to the Pistachio Platform and associated materials and content's correctness, accuracy, reliability, quality and fitness for a particular purpose. Customer acknowledges that the Pistachio Platform has not been developed to meet Customer's individual requirements or needs and that it is Customer's responsibility to ensure that the Pistachio Platform meets its requirements and needs.
6.3 Both Pistachio and Customer shall in no event be liable for any (i) loss of profits, sales or business; (ii) business interruption; (iii) loss of business opportunity, goodwill and/or reputation; or (iv) any other special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement. Pistachio’s maximum aggregate liability under or in connection with this Agreement shall be limited to a sum equal to the amount Customer paid to Pistachio in the previous twelve (12) month period. In no case shall Pistachio’s maximum aggregate liability exceed 100,000 NOK.
6.4 The above limitations of liability shall apply to the maximum extent permitted by local statutory law.
7. DATA PROTECTION
7.1 Save for in relation to clause 7.2 (as applicable), the Parties intend that Pistachio only processes personal data under these Terms as a processor acting on behalf of Customer as the controller in accordance with Pistachio’s privacy policy.
7.2 Pistachio shall act as a controller and shall collect and otherwise process personal data for purposes related to the delivery of the Pistachio Platform, including but not limited to billing, statistics, security and legal claims and obligations. For further detail on rights and how Pistachio processes personal data as a controller, please refer to Pistachio’s privacy policy.
7.3 Pistachio shall take appropriate and commercially reasonable technical and organisational measures to protect against unauthorised or unlawful processing of any personal data provided by Customer, or any accidental loss, destruction or damage of such data.
8. TERM AND TERMINATION
8.1 Save for in relation to clause 8.2 (as applicable), the duration of these Terms shall be one (1) year as of the Effective Date ("Initial Term"), and will thereafter on a continuing basis be automatically renewed for a period equal to the Initial Term ("Renewal Period"), unless terminated by either Party upon three (3) months' written notice prior to the end of the Initial Term or, if automatically renewed, the end of the last renewal period during which these Terms were automatically renewed (collectively, the "Duration").
8.2 In the event that the Initial Term or Renewal Period (or both) are defined in the Order Form, the periods stated in the Order Form will take priority over and supersede the periods stated in clause 8.1 above.
8.3 Pistachio shall not increase the price Customer pays under these Terms unless specified in the Order Form.
8.4 Pistachio will retain Customer's data for a period of twelve (12) months after the termination of these Terms. After this point, the information stored on Customer's Pistachio Platform account (including course information, goals and progress) will be permanently deleted.
8.5 Either Pistachio or Customer may terminate this Agreement at any time upon reasonable belief that the other Party has materially breached any provision of this Agreement.
9. GENERAL PROVISIONS
9.1 Pistachio may transfer its rights and obligations under this Agreement to another company provided that such a transfer is done in connection with a reorganization, merger, or sale of all or substantially all of such Pistachio's assets. This will not affect Customer's rights or Pistachio's obligations under this Agreement. Customer may only transfer its rights and obligations under this Agreement to another person, company or legal entity if Pistachio agrees in writing.
9.2 If any provision (or part of a provision) of these Terms are found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) shall remain in force.
9.3 These Terms shall be governed by, and construed in accordance with, the laws of Norway and the parties irrevocably submit to the exclusive jurisdiction of the Norwegian Courts.