Terms of Service - CheckPhish AI

Last Updated: October 1, 2024

Bolster End User Customer Service Agreement

This Bolster End User Customer Service Agreement (“Agreement”) is between Bolster, Inc. (“Bolster”) and the customer (“Customer”) identified in any applicable Bolster purchase order (“Order”) or anyone who otherwise uses the Bolster Service. This Agreement along with any Order and Bolster’s Privacy Policy available at https://bolster.ai/privacy-policy contain the terms and conditions that govern the access and use of Bolster products (the “Service”). By accessing the Service and/or submitting any Orders for the Service, Customer agrees to be bound by the terms of this Agreement. If Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the legal authority to bind that company or legal entity to this Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THIS AGREEMENT CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND BOLSTER. BY INDICATING CONSENT ELECTRONICALLY, OR USING THE SERVICE, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF AT ANY TIME CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, MAKE NO FURTHER USE OF THE SERVICE.

Other Agreements, Precedence

Customer may also or alternatively be subject to an Order or corporate Service Agreement, which is more specific and takes precedence over this Agreement, but only to the extent of that Order or Service Agreement. If Customer is accessing the Service as part of a Managed Service Provider agreement (“MSP Agreement”), the MSP Agreement may provide Customer with more rights, remedies and protections from the Managed Service Provider. Except for the below Restrictions, Confidentiality and Proprietary Rights sections, directly conflicting terms or conditions in any MSP Agreement with Customer take precedence over this Agreement as long as they do not impose additional liabilities, warranties, responsibilities, support obligations or other commitments on Bolster. Terms not defined here use the definition in the Order, Service Agreement, MSP Agreement or Bolster Documentation.
Access and Use of the Service

2.1 Access Grant. Subject to the terms and conditions set forth in this Agreement, and subject to payment of all applicable Fees and any limitations and restrictions set forth in any applicable Order, Bolster will provide Customer with access to and the right to use the Service remotely over the Internet during the applicable Service Term solely for Customer’s own internal business purposes in accordance with any Order and Bolster’s applicable documentation (“Documentation”).

2.2 Customer Account. Customer will be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account with or without Customer’s knowledge or consent.

2.3 Restrictions. Customer will not, and will not permit any third party to directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms relevant to the Service or any Documentation, data or software related to the Service (collectively “Software”); (ii) modify, translate, or create derivative works based on the Service, Documentation or Software; (iii) lease, license or resell the Service or any related intellectual property, or use the Service or Software for timesharing or service bureau purposes or for any purpose other than Customer’s own internal use for its own internal benefit; (iv) remove or otherwise alter any proprietary notices or labels on the Service, Documentation or Software or any portion thereof; (v) use the Service, Software or Documentation for purposes of competitive analysis, the development of a competing software application, product or service, or any other purpose that is to Bolster’s commercial disadvantage; or (vi) use the Service, Software or Documentation other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights.

2.4 Third Party Services. Customer acknowledges and agrees that the Service operates on or with or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”), such as Internet and cloud service providers. Bolster is not responsible for the operation of any Third Party Service or the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Bolster does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
Fees, Payment, Taxes

3.1 Fees; Payment Terms. Customer will pay Bolster the applicable fees as set forth on the Order, Service Agreement, MSP Agreement or any other agreement to pay (the “Fees”). All payments will be made in accordance with the Payment Schedule and the Method of Payment as set forth in any applicable Order. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.

3.2 Taxes. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, withholding, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Bolster’s net income) unless Customer has provided Bolster with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Bolster on account thereof.
Limited Warranty

4.1 In general. Each party warrants that it has validly entered into this Agreement with the legal power to do so. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, BOLSTER HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OR DEALING. THE SERVICE IS PROVIDED “AS IS”.

4.2 THE SERVICE IS NOT GUARANTEED. For example, Bolster’s CheckPhish uses advanced AI technology to detect phishing and scam sites, but it is not guaranteed to detect with 100% accuracy.  For instance, a site that is created with geo-fencing and malicious content in a geographical area Bolster does not support may not get detected.
Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF DATA OR COST OF COVER) AND EACH PARTY’S RESPECTIVE TOTAL LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) WITH REGARD TO THE SERVICE OR USE THEREOF, OR ANY OTHER ITEMS OR SERVICES FURNISHED UNDER THIS AGREEMENT, WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO BOLSTER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. IF CUSTOMER DID OR DOES NOT PAY BOLSTER, BOLSTER’S MAXIMUM LIABILITY IS ONE HUNDRED AND FIFTY DOLLARS ($150). Notwithstanding the above, as damages may be an insufficient remedy, Bolster may seek injunctive relief to address violations or threatened violations of the Restrictions, Proprietary Rights or Confidentiality Sections of this Agreement.
Defense and Indemnification

6.1 Indemnification by Bolster. Bolster agrees to indemnify, defend, and hold Customer, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, resulting from any third party claim that the Service or use thereof in accordance with this Agreement constitutes an infringement of any valid United States patent, copyright, or trade secret of a third party. Notwithstanding the foregoing, Bolster will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of the Service in combination with any other device, product, software, service, process, equipment, infrastructure or material not furnished or approved in writing by Bolster, (b) any use of the Service that is not its intended use; or (c) any modification of any Service by anybody other than Bolster or approved in writing by Bolster. In the event that Bolster believes that any such intellectual property claim is likely to occur, Bolster may, at its sole option and expense, either (i) secure for Customer the right to continue using the Service, (ii) modify or replace the Service so that it does not infringe, or (iii) require that Customer cease using the Service and refund the sums paid therefor for Services unperformed. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF BOLSTER TO CUSTOMER AND CUSTOMER’S SOLE REMEDY, WITH RESPECT TO THE INFRINGMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

6.2 Indemnification by Customer. Customer agrees to indemnify, defend, and hold Bolster, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of the Service in violation of this Agreement, including without limitation any claim that the collection, transfer, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive.

6.3 Indemnification Process. Each party claiming indemnification shall (a) promptly give the indemnifying party written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim that adversely affects the indemnified party without prior written consent); and (c) provide all reasonable assistance, at the indemnifying party’s expense.
Free Trial or Evaluation

IN THE EVENT THAT BOLSTER HAS GRANTED CUSTOMER A FREE TRIAL OR EVALUATION ACCESS, THE SERVICE IS PROVIDED “AS IS” ONLY, WITHOUT ANY WARRANTY, AND THE TERMS OF SECTION 5.1 SHALL NOT APPLY. CUSTOMER ASSUMES ALL RISK WITH RESPECT TO ITS USE OF THE SERVICE ON A FREE TRIAL OR EVALUATION BASIS.
Proprietary Rights

As between Bolster and Customer, Bolster or its licensors own and reserve all right, title and interest in and to the Service, Software, Documentation, and all and other items used to provide the Service, including any modifications, enhancements, improvements, customizations, updates or derivative works thereof. No title to or ownership of any proprietary rights related to the Service is transferred to Customer pursuant to this Agreement or any transaction contemplated by this Agreement, other than the rights explicitly granted to Customer in Section 1 to use the Service. Bolster will be free to use or incorporate into any products or service, without any obligation to Customer, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service. As between Customer and Bolster, Customer or its licensors own all right, title and interest in and to any electronic data, text, audio, video, images or other content uploaded by Customer to the Service (“Customer Content”) Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Content. Customer hereby grants Bolster the right to transmit, use or disclose the Customer Content to provide the Service to Customer or to comply with any compelled request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law. Bolster may also aggregate Customer Content and data obtained from Customer’s use of the Service with content and data from other customers and use such aggregated data to evaluate and improve the Service, and otherwise for Bolster’s business purposes. This aggregated data will not identify any customer, individual, or company and shall not be able to be re-identified.
Confidentiality 

“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation Software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, the Service, Software and structure, organization, code, and related Documentation are the Confidential Information of Bolster. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The foregoing restrictions will not apply to any use or disclosure that is (i) required by applicable law, legal process or governmental authority, provided that the receiving party uses reasonable efforts to notify the disclosing party of the required disclosure and cooperates in obtaining a protective order to limit such disclosure; or (ii) made with the specific prior written consent of the disclosing party. The parties agree that a breach of this section may cause irreparable damage for which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
Term and Termination

10.1 Service Term. This Agreement will be in effect for the Service Term specified in the applicable Order or other agreement, or as long as Customer uses the Service, unless earlier terminated as set forth below.

10.2 Termination. In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such notice period.

10.3 Post-Termination Obligations. Upon any expiration or termination of this Agreement for any reason, Customer will cease to have access to the Service and all of Customer’s rights herein will cease, any and all liabilities accrued prior to the effective date of the termination will survive, and he parties will, within ten (10) days of such termination, destroy or return all copies of the Confidential Information of the other party, including any documentation in written or electronic form. For the avoidance of doubt, any Confidential Information, especially information that cannot be returned shall continue to enjoy the same protections as found in the Confidentiality section, which shall survive termination.

10.4 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, proprietary rights, limited warranties, indemnities and limitations of liability.
Support Services

Bolster will undertake commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week. The Service will be provided pursuant to and conform to Bolster’s Documentation, but Bolster does not warrant or commit that the Service shall be error free or uninterrupted. Notwithstanding the foregoing, Bolster reserves the right to suspend Customer’s access to the Service: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Bolster, or (iii) unexpected or unlikely events beyond Bolster’s direct control, including but not limited to hacking attempts or similar occurrences. Subject to the terms hereof, Bolster will provide reasonable support by email to Customer for the Service from Monday through Friday during Bolster’s normal business hours and may provide additional support pursuant to an Order. The Service is subject to modification from time to time at Bolster’s sole discretion, for any purpose deemed appropriate by Bolster. Bolster commits that such modifications will not overall reduce the performance of Service. Bolster will use reasonable efforts to give Customer prior notice of any material modification, which may include posting information on Bolster’s website.
Compliance with Law

Both Bolster’s provision of and Customer’s use of the Service will be in compliance with applicable law, including without limitation privacy, data protection and export laws. Specifically, Customer will not directly or indirectly export, re-export, or transfer the Service to prohibited countries or individuals or permit use of the Service by prohibited countries or individuals. Customer warrants that the collection, transfer, storage or use of any customer content does not infringe on the rights of a third party or any law, regulation or directive.
Modification of Agreement

Bolster reserves the right to make generally applicable changes to this Agreement with a minimum thirty (30) days notice and by providing notice to Customers in any manner as determined by Bolster, such as electronic posting of an updated version of this Agreement to Bolster’s website. If Customer does not agree to the modifications, Customer must discontinue using the Service.
No Third Party Beneficiaries

Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Service Agreement

This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
Force Majeure

In no event shall Bolster be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Bolster’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, other disasters such as epidemics, or explosions; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergencies; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities or (ix) unauthorized access to or interference with the Bolster’s systems or data by third parties, including but not limited to hacking or cyberattacks.
Assignment

This Agreement is not assignable, transferable or sublicensable by Customer except with Bolster’s prior written consent. Notwithstanding the foregoing, each party may assign its rights and obligations under this Agreement to its successor in interest in a merger, reorganization or a sale of all or substantially all of its assets as long as the Customer’s successor is not a competitor of Bolster’s. The assigning party agrees to give the other party a written notice of the assignment within 30 days after the closing of the definitive transaction. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns.
Arbitration

With the exception of the areas in this Agreement providing for injunctive relief, Bolster and Customer hereby agree to submit disputes arising from the Services or this Agreement to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Both Bolster and Customer further agree that any arbitration controversy will be submitted to only one arbitrator, that they will faithfully observe this Agreement and the arbitration rules, will abide by and perform any award rendered by the arbitrator, and that a judgment of any United States court having jurisdiction may be entered on the award.
Waiver of Jury Trial

EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER  KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Miscellaneous

Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Except for general modifications to this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given, when received if personally delivered; when receipt is electronically confirmed if transmitted by facsimile or e-mail; and upon receipt if sent by certified, registered, or express mail (return receipt requested), postage prepaid, or by a nationally-recognized express courier with a tracking system.

This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Santa Clara County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Neither party may issue a public statement or press release regarding this Agreement without the prior consent of the other party.

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Government User Terms

The Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101; the Software and Documentation consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the right to use the Service and any other Software and Documentation covered under this Agreement with only those rights set forth herein.