Latest update: April 30, 2024

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These Terms of Services (with the Order Form and any amendments or supplements, the “TOS”) are between the person identified in a corresponding Order Form (“Customer”) and Cyber PNM Inc., with a registered address at 355, Peel Street, Suite 208, Montreal, Quebec, H3C 2G9, Canada (“Cyber PNM”). The TOS enter into force upon the execution of a corresponding Order Form (the “Effective Date”) and continues to full force until the termination in accordance with the Terms as defined in Section 13 [Termination; Suspension], or otherwise until the end of the Subscription Term. 

To the extent that Customer procured the Services from an authorized reseller (a “Distributor”), Sections 8 [Fees, Taxes], 13.2 and 13.6 [Termination] are not applicable, and the terms and conditions applicable between Distributor and Customer (the “Distributor Terms”) will find application instead. Unless indicated otherwise herein, the TOS will prevail over the DistributorTerms in case of conflict between their respective terms and conditions. The termination of the TOS does not result in the termination of the Distributor Terms.

Cyber PNM is not responsible for Distributor’s representations and warranties, except as otherwise set forth herein. If the Distributor ceases to be approved or authorized by Cyber PNM for any reasons, Customer may obtain the Services directly from Cyber PNM, in accordance with the TOS.

1.    DEFINITIONS

1.1.    The expressions which are not defined elsewhere in the TOS are defined below.

●    “Affiliates” means any person or entity directly or indirectly controlling, controlled by or under common control with a party, where “control” means the legal power to direct or cause the direction of the general management of a party.

●    “Aggregated Threat Data” means  End User Data which are aggregated prior to communication to Customer, including as part of the Risk Scoring Services. 

●    “Applicable Laws” means the federal, state and provincial laws, regulations, rules, and orders applicable to the delivery of the Services, or otherwise to the TOS.

●    “Beta Services” means any Services provided, for any period, as a proof-of-concept, beta trial, early version for evaluation, developer-only version, free trial, temporary access, or preview version. Beta Services include any temporary accesses to part, or all the Services provided for testing, sampling, demos or otherwise, as indicated in an Order Form, or otherwise in the Services.

●    “Confidential Information” means any information disclosed by a party (the “Disclosing Party”) to the other party or its representatives (the “Receiving Party”), including, without limitation, all computer programs, codes, algorithms, know-how, processes, formulas, marketing plans, strategic plans, and other technical, business, financial and product development data, which the Receiving Party should reasonably know is confidential to the Disclosing Party. 

●    “Customer Data” means (a) any information provided or submitted by Customer or its End Users to Cyber PNM through the Services; (b) the Aggregated Threat Data; and (c) any End User Data.

●    “Cyber PNM Solution” means any web applications, application programming interface (“APIs”), online program, mobile application or software made available to Customer pursuant to an Order Form, including through access to the Services when applicable, for the duration of the Subscription Term.

●    “Data Protection Laws” means any laws, treaties, and regulations applicable to the processing of Personal Data by either party pursuant to the TOS, including, as applicable from time to time, the General Data Protection Regulation, the Data Protection Act 2018, the Personal Information Protection and Electronic Documents Act, and any other applicable data protection law.

●    “Documentation” means the documentation describing the Services, such as the specifications, and made available to Customer.

●    “End User” means are users authorized by Customer to use and access the Services.

●    “End User Data” means data about end users who are collected through the Monitoring Services, including data from public sources or sources made available by the End User.

●    “Fees” means any fees due by Customer pursuant to an Order Form for the Services, and any other amounts owing under the TOS.

●    “Force Majeure” refers to circumstances beyond its reasonable control, including, acts of God, natural disasters, pandemics, war, terrorism, civil unrest, labour disputes, or any other extraordinary events or circumstances. 

●    “Improvements” refers to any enhancements, modifications or updates made to the Services which are generally made available to all Customers without additional fees. 

●    “IP” means all intellectual property, including, without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulas, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and all proprietary rights provided under patent law, copyright law, trade-mark law, design patents or industrial design law, semiconductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing. 

●    “Losses” means any claims, damages, fines, costs, expenses, and reasonable attorneys’ fees.

●    “Marks” means the registered or unregistered trademarks, service marks, logo, trade names, brand names, corporate names, and other distinctive branding elements, whether registered or unregistered, owned or controlled by a party, and any goodwill associated with such Marks. This includes, but is not limited to, the design, stylization, color schemes and graphic representations of the Marks, as well as any modifications thereof, and any other materials provided in relation with the Marks, including documentation for the Customer Branded Portal.

●    “Monitoring Services” means the use of the Services to monitor social media, accessible Public Data on the world wide web, and other data sources as determined by Cyber PNM from time to time.

●    “Order Form” means an order form, a quote, a purchase order, a change order, or procurement document that indicates the applicable Services, the Subscription Term, and the Fees. If the Services are procured through a Distributor, the Order Form between Distributor and Customer describes the Services, the Subscription Term, and the Fees.

●    “Personal Data” means data that can directly or indirectly identify an individual, and which is processed by Cyber PNM on behalf of Customer, as part of the Services. 

●    “Personalized Solution” means the white labeling or any other customization of the Cyber PNM Solution using Customer’s Marks, to provide a personalized experience, as described in an Order Form.

●    “Professional Services” means professional and advisory services relating to investigation, threat intelligence and breach remediation provided by Cyber PNM or its business partners.

●    “Privacy Breach” means the processing of Personal Data in violation of this TOS or Data Protection Laws.

●    “Risk Scoring System” means the processing of the End User Data

●    “Security Breach” means a breach of security safeguards resulting in the unauthorized access or disclosure of Customer Data. 

●    “Services” means the services and the Cyber PNM Solution provided to Customer pursuant to an Order Form, including such as any Risk Scoring Services, Monitoring Services, Technical Support and Professional Services.

●    “Subscription Term” the period during which the Services will be provided to Customer, as indicated in the Order Form, or otherwise in the Distributor Terms.

●    “Technical Support” means the provision of the maintenance and technical support agreed upon in an accordance with an Order Form, including, where applicable, any change requests for any Personalized Solution.

●    “Third-Party Services” means any integration partners, third-party applications, technologies, or services, including Customer’s IT systems, vendors, and partners.

2.    PROVISION OF THE SERVICES

2.1.    During the Subscription Term, Cyber PNM will provide the Services described in an Order Form, subject to the payment of the Fees. Customer shall have the right to make the Services available to its Affiliates, if agreed upon in the Distributor Terms or Order Form (the “Authorized Affiliates”). Customer remains responsible for the compliance of Authorized Affiliates with the TOS and is liable for breaches of the TOS by Authorized Affiliates. Notwithstanding the foregoing, to the extent that the Services are procured through a Distributor, the Distributor Terms shall set forth the Services to be provided by Cyber PNM, and the Fees are paid to the Distributor in accordance with the Distributor Terms. Notwithstanding anything to the contrary in the TOS, and except as set forth otherwise in the TOS, the Fees are non-reimbursable and non-cancellable. 

2.2.    During the Subscription Term, Cyber PNM will provide the Technical Support in accordance with Exhibit A, including any Improvements made to the Services during the Subscription Term. The Cyber PNM Solution will be available based on the Uptime specified under Exhibit A. In case of a repetitive or material breach of Exhibit A, Customer may terminate part or all the TOS pursuant to Section 13.2. Unless agreed otherwise in the Distributor Terms or in an Order Form, Customer is responsible for provisioning End Users’ accesses to the APP and configuring the Services. Cyber PNM is not responsible for End Users’ failure to protect the confidentiality of their credentials. Customer will promptly suspend access to compromised accounts and inform Cyber PNM of such compromission. 

2.3.    Notwithstanding anything to the contrary, the Professional Services are provided on a best-effort basis, based on industry’s practices and with reasonable skill and expertise. Cyber PNM does not make any warranties regarding the outcome of an investigation. The Professional Services have certain limitations, including data integrity and availability, encryption, data obfuscation techniques, intentions of malicious actors and rapidly evolving technology. We cannot guarantee conclusive results regarding Professional Services. The Professional Services, including any outputs, are deemed approved upon delivery or payment of the Professional Services, whichever comes first. 

2.4.    Beta Services are provided “as is,” “where is,” and “as available,” and we make no representations or warranties. Beta Services may contain bugs, errors and may have limited functionalities. Beta Services may be terminated at any time. Any interface, information, or content accessed or used within Beta Services is Cyber PNM’s Confidential Information and may be automatically disabled upon the expiration of the designated usage period, or at Cyber PNM’s discretion, with or without prior notice.

2.5.    Cyber PNM does not warrant or guarantee that the Services (including the Cyber PNM Solution) will be compatible or interoperable with Third-Party Services. Except if the parties specifically agree otherwise in writing in an Order Form, Cyber PNM’s Services do not include any data breach response services, nor negotiation with threat actors. 

2.6.    Customer agrees not to rely upon the Services as the sole measure for maintaining the security of its systems and data. Customer is responsible for determining the measures necessary for this purpose. Reliance on the Services, including the Aggregated Threat Data, for any court processing and forensic investigations, is at your own risk and discretion. If Cyber PNM is required to act as a witness in court, Cyber PNM will do so based on the then-current available Fees for such Professional Services. 



3.    ACCEPTABLE USE POLICY

3.1.    Customer will access and use, and allow the access and use, of the Services for the intended purposes, which includes the prevention of fraud, threat intelligence, dark net monitoring, information privacy, and protecting corporate assets and networks Customer will only access and use, and authorize the access and use, of the Services in accordance with Applicable Laws and the terms of the TOS.

3.2.    Customer will not access and use, nor permit the access and use of the Services:
•    For discriminatory purposes, to conduct criminal checks, for unfair and deceptive practices, or to conduct benchmarking for purposes other than for the intended purposes, or as authorized by Cyber PNM. 
●    As part of the commercialization, licensing, distribution, reselling or selling of the Services (including any Aggregated Threat Data)
●    In a way that disrupts third parties’ use or enjoyment of the Services. 
●    To create, transmit, distribute, or store material in violation of a third party’s IP, privacy, reputation, or other personal rights of individuals. 
●    In a way that is threatening, abusive, hateful or constitutes or encourages conduct that would be considered fraud, criminal offence or likely to give rise to civil liability. 
●    To share credentials or accounts with third parties or between End Users.
●    With any automated data gathering or extraction tools to access, modify, reconstruct, decompile, disassemble, decipher, decrypt, penetrate, contour, or otherwise reverse engineer any source code, ideas, algorithms, or security controls pertaining to the Services.
●    In a way that results in the reidentification, reverse engineering, reconstruction, or unauthorized use of any Aggregated Threat Data.

3.3.    In case of a violation or imminent violation of this Section 3 [Acceptable Use Policy], Cyber PNM will have the right to suspend part or all of Customer’s access to the Services to the extent necessary to cure such violation. Cyber PNM will provide prior notice to Customer, unless it is prevented to do so by the circumstances of the suspension, in which case, Cyber PNM will notify Customer without undue delays. 

4.    PERSONAL DATA 

4.1.    Cyber PNM is the processor of the Personal Data, and Customer is the controller of the Personal Data. Cyber PNM will process the Personal Data to provide the Services in accordance with Customer’s instructions, including the TOS. If Cyber PNM becomes aware that such instructions are in violation of Data Protection Laws, Cyber PNM will inform Customer without undue delays. Cyber PNM may refuse to process Personal Data based on an instruction it believes is in violation of Data Protection Laws. Cyber PNM will not process Personal Data for marketing purposes or otherwise commercialize the Personal Data. 

4.2.    Customer is solely responsible for ensuring that the use of the Services, including the Monitoring Services and Risk Scoring Services, comply with all Applicable Laws, including but not limited to Data Protection Laws. Customer is solely responsible for assessing any risks and obligations regarding profiling and automated decision-making.

4.3.    The table below describes the processing of Personal Data by Cyber PNM.

4.4.    If Cyber PNM is required to process the Personal Data to comply with Applicable Laws, or the administration thereof, Cyber PNM will inform Customer of such obligation prior to processing the Personal Data, unless prevented so under such applicable laws. If the TOS must be amended to Data Protection Laws, Cyber PNM will make such modifications as required pursuant to Data Protection Laws and inform Customer in writing. Notwithstanding anything to the contrary, this modification will be deemed effective within 30 days of being notified to Customer, unless Customer provides written motives for rejecting the changes, in which case, the parties will negotiate in good faith.

4.5.    Upon the termination or expiration of the TOS, or before, if requested by Customer, Cyber PNM will securely delete any Personal Data. Notwithstanding the foregoing, Cyber PNM may continue to process Personal Data after this date to the limited extent required for encrypted back-up tapes for business continuity purposes, or to comply with Applicable Laws.

4.6.    If Cyber PNM receives a request from a concerned individual regarding Personal Data, Cyber PNM will promptly notify Customer in writing. Cyber PNM will cooperate with Customer, to the extent necessary to facilitate the fulfillment of this request in compliance with Data Protection Laws. Cyber PNM will implement appropriate technical and organizational measures to ensure that it can provide reasonable assistance to Customer in responding to such requests.

4.7.    Prior for allowing a service provider to process Personal Data, Cyber PNM will (a) conduct a reasonable due diligence of such subprocessors, and (b) enter into an agreement containing terms substantially similar than those contained herein regarding the protection of Personal Data. 

4.8.    Prior for making changes to its list of subprocessors, Cyber PNM will inform Customer in writing at least 30 days before such modification being effective. Customer will have 15 days to inform by writing Cyber PNM if it has any reasonable objection. The parties will attempt to resolve the disagreement in good faith. If the parties cannot agree within 30 days, either party can terminate the TOS without penalty, and Cyber PNM will reimburse to Customer any Fees paid in advance for Services not rendered at the date of termination.

4.9.    Prior to authorizing a cross-border transfer of Personal Data, Cyber PNM will ensure that it complies with Data Protection Laws, including by entering into an agreement contained terms and conditions substantially similar to those contained herein. Cyber PNM will inform Customer in writing of any material changes to the Privacy Policy.

4.10.    Cyber PNM will inform Customer without undue delays of any Privacy Breach, including by providing the information necessary for Customer to assess the risks relating to such Privacy Breach. Cyber PNM will further inform Customer of any suggested remediation measures to prevent the reoccurrences of such Privacy Breach. The parties will collaborate in good faith as necessary to notify concerned individuals and authorities of such Privacy Breach.  

4.11.    Cyber PNM will deploy commercially reasonable technical and organizational measures as reasonably required to protect Customer Data, taking into consideration the state of the art, the costs of implementation and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, and such as to ensure an adequate level of security is appropriate to the risk. 

4.12.    In the event of a Security Breach, Cyber PNM will inform Customer without undue delays, and no longer than 48 hours from becoming aware of the Security Breach. The notification will include, as applicable, (a) the types of Personal Data concerned; (b) a description of concerned individuals; (c) the expected consequences and impacts for concerned individuals and (d) reasonable information on the root cause of the Security Breach. If such information is not available at the time of the initial disclosure, Cyber PNM will follow up promptly when such information becomes available. Cyber PNM will also inform Customer of remediation actions taken or to be taken regarding the Security Breach. Customer agrees and understands that Cyber PNM may be required to inform Distributors  of a Security Breach, and the foregoing notification may be provided by Distributor

4.13.    Once per calendar year, upon a prior written notice of 30 days to Cyber PNM, Customer may audit Cyber PNM’s compliance with this Section 4. This audit shall include written requests for information and questionnaire review. The foregoing information is Cyber PNM’s Confidential Information. The audit must be performed by individuals subject to an appropriate confidentiality obligation, and during business hours. If Customer’s audit demonstrates non-compliance, the parties will enter a commercially reasonable remediation plan. Cyber PNM will provide regular update to Customer on the completion of the remediation plan. Notwithstanding the foregoing, Customer may conduct an additional audit in the same calendar year to follow up on the completion of the remediation plan.

5.    IP

5.1.    Customer retains all right, title, and interest, including any IP, in and to the Customer Data. Customer Data is the exclusive property of Customer, and Cyber PNM does not obtain any rights, title, or interest in the Customer Data, except as necessary to provide the Services. Without limiting the foregoing, during the Term, Cyber PNM shall have the right to reproduce, use and modify Customer Data to use aggregated and anonymized usage data to improve its product and service, including to conduct research and development. Cyber PNM will anonymize Personal Data in accordance with Data Protection Laws. 

5.2.    Cyber PNM retains all rights, titles, and interest in the Services, including the Cyber PNM and the Documentation, as well as any rights, titles and interests in any pre-existing IP, or IP developed outside of the Professional Services, including any methodology, know-how, templates, or processes used for the Professional Services. No transfer of ownership rights, titles or interests of any IP is implied in the TOS unless set forth otherwise, and all rights not granted herein are reserved. 

5.3.    Cyber PNM will be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer to Cyber PNM, to the extent that they relate to the Services or the Cyber PNM Solution (“Feedback”). Customer hereby assigns to Cyber PNM, without limitation of any kind, all its rights, titles, and interests therein, and waives any non-assignable moral right therein, Cyber PNM accepting such assignment and waiver.  

6.    PERSONALIZED SOLUTION

6.1.    To the extent set forth in an Order Form, Cyber PNM will deliver the Cyber PNM Solution as a Personalized Solution. During the Term, Customer hereby grants Cyber PNM a limited, non-exclusive, revocable, and non-transferable license to use the Customer Marks (a) to provide the  Personalized Solution; (b) to provide the Services based on Customer’s instructions; (c) to feature Customer as part of list of clients for business development purposes, unless such consent is withdrawn in writing by Customer. The  Personalized Solution is subject to the following additional terms and conditions:
•    Customer agrees and understands that the customization and branding options of the Cyber PNM Solution may be limited. The  Personalized Solution is subject to such limitations, including as described in the Documentation.
•    Any change requests regarding the  Personalized Solution will be addressed as follows and shall be initiated by Customer through Technical Support. If the change requested is a “Major Change” as indicated in the table below, the change requested must be documented in an Order Form and will be performed as Professional Services. Cyber PNM determines if a change request is major or minor in its sole reasonable discretion. 

6.2.    To the extent applicable in an Order Form, Cyber PNM will use a customized domain name provided by Customer (the “Customer Domain”) to make the  Personalized Solution available to End Users. The following terms and conditions apply to Cyber PNM’s use of the Customer Domain.

•    During the Term, and to the extent applicable in an Order Form, Customer hereby grants to Cyber PNM a non-exclusive, royalty-free, revocable, and non-transferable license to use the Customer Domains solely for the purpose of providing the Services, including the  Personalized Solution, in accordance with the Terms.
•    Customer represents and warrants that the Customer Domain, if any, is owned or controlled by Customer and does not infringe upon or violate third-party IP, including any Marks. 
•    During the Term, and to the extent applicable in an Order Form, Customer hereby grants to Cyber PNM a non-exclusive, royalty-free, revocable, and non-transferable license to use the Customer Domains solely for the purpose of providing the Services, including the Personalized Solution, in accordance with the Terms.
•    Cyber PNM disclaims any liability for the use of the Customer Domain. Customer is solely responsible for ensuring that Customer Domain complies with Applicable Laws and respect third-party's IP.

6.3.    Customer is responsible for drafting, providing, maintaining, and updating any Customer-provided consent wordings, notices, policies, terms and conditions or documents which it decides on making available through the Customer Branded Portal (the “Branded Material”). To the extent that Customer uses Branded Material, Cyber PNM is not liable for such Branded Material, including for its accuracy or lawfulness. Customer is sole responsible for ensuring that the Branded Material shared with Cyber PNM, and any instructions for its implementation, are in accordance with Applicable Laws, including Data Protection Laws. Cyber PNM will not be responsible for any Losses resulting from the Branded Material.

6.4.    Notwithstanding anything to the contrary in the Terms, Cyber PNM reserves the right, in its sole discretion, to temporarily suspend access to, or take down, the Customer Domain, Branded Material or  Personalized Solution if it reasonably believes that it is in breach of a third-party’s IP, or otherwise in breach of Applicable Laws. Cyber PNM will promptly notify Customer of any suspension or takedown and will work with Customer to resolve the issue. Access will be restored once the alleged breach has been resolved to Cyber PNM’s reasonable satisfaction. 

7.    CONFIDENTIAL INFORMATION

7.1.    Confidential Information shall not include information which the Receiving Party can demonstrate: (a) is readily available to the public in the same form through no fault of the Receiving Party, (b) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure, or (c) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party. 

7.2.    The Receiving Party may not use or disclose the Disclosing Party’s Confidential Information, except (a) as reasonably required to provide the Services and execute its obligations pursuant to the TOS; (b) to comply with applicable laws; and (c) to obtain professional advice, such as from a financial or legal counsel. Each recipient shall be under a confidentiality agreement substantially similar to the one contained herein, or a similar legal obligation.

7.3.    Notwithstanding anything to the contrary, Cyber PNM will have the right to disclose Confidential Information to Distributor, such as technical support communications, billing and reporting data, to administer and provide the Services, including Technical Support.

7.4.    If the Receiving Party is required by law, regulation, court order, or by a governmental or regulatory authority to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent permitted by applicable law, promptly notify the Disclosing Party in writing of such requirement prior to making the disclosure. The Receiving Party will reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in any efforts by the Disclosing Party to limit, restrict, or contest the required disclosure or to obtain a protection order or other confidential treatment of the Confidential Information. The Receiving Party will only disclose the portion of the Confidential Information which it reasonably believes legally required to disclose. 

7.5.    Upon the termination or expiration of the TOS for any reason, the Receiving Party will securely destroy the Disclosing Party’s Confidential Information, or at the request of the Disclosing Party, return all Confidential Information in its possession. Notwithstanding the foregoing, the Receiving Party may keep copies of Confidential Information if required to comply with applicable laws or their administration, and as part of reasonable and encrypted backups for business continuity purposes.

8.    FEES, TAXES

8.1.    Customer will pay Cyber PNM for the Fees, and any other amounts owing under the TOS, as specified in the Order Form. Customer will pay for all taxes which Cyber PNM is required to collect pursuant to applicable laws.

8.2.    Unless otherwise specified in such Order Form, Customer will pay all Fees within 30 days of the receipt of an invoice. If the Fees are not paid within this delay, the interests of 1.5% monthly (or 18% annually) will be applied on any overdue Fees, until the payment of such Fees and corresponding interests. If the Fees are not paid within 60 days after Cyber PNM provides a written notice to this effect to Customer, Cyber PNM may suspend the performance of the Services until reception of the payment for the Fees overdue and the corresponding interests. If Customer does not pay the Fees for a period of 90 days, upon receiving a notice to this effect by Cyber PNM, Customer will reimburse any costs and expenses (including but not limited to, reasonable attorneys’ fees) incurred by Cyber PNM to collect any undisputed amount that is not paid when due. The Fees due by Customer may not be withheld or offset against amounts due to Customer by Cyber PNM, for any reasons.

8.3.    Unless indicated otherwise in an Order Form, or if either party provides written notice of the non-renewal at least 30 days prior to the end of the then-current Subscription Term, the TOS will automatically renew for successive periods of 12 months at Cyber PNM’s then-current Fees for the Services. In the event of a renewal, the TOS will continue to apply, and the Fees will be due and payable as set forth in the Order Form. 

8.4.    If Customer disputes, in good faith, any portion of an invoice received from Cyber PNM, Customer shall provide written notice to Cyber PNM within 30 days from the invoice date, specifying the nature and amount of the dispute. Customer shall timely pay any undisputed portion of the invoice. The parties shall work together in good faith to resolve the dispute within 30 days from the date of the written notice. If the parties are unable to resolve the dispute within the specified period, each party reserves the right to exercise any remedies available under the TOS or applicable law. 

9.    REPRESENTATIONS AND WARRANTIES

9.1.    Each party represents and warrants to the other that (a) the TOS have been duly executed and delivered and constitute a valid and binding agreement enforceable against such party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of TOS.

9.2.    Cyber PNM represents and warrants that the (a) Services will be performed in a professional and workmanlike manner, substantially in accordance with the Documentation and (b) the Services is not, to the best of Cyber PNM’s knowledge, in violation of a third party’s copyright or trademarks (an “IP Claim”). In the event of an IP Claim, Customer’s sole remedy will be, at Cyber PNM’s option, to (i) modify the Services to render it non-infringing; (ii) obtain a licence for Customer’s continued use of the Services, or (iii) terminates the Order Form(s) and refund any prepaid, unused Fees corresponding to the remaining time in the Subscription Term. 

10.    DISCLAIMERS

10.1.    Except as expressly set forth otherwise in the TOS, the Services, including the End User Data, Aggregated Threat Data, Risk Scoring Services and Documentation, are provided “as is,” “as available” without warranty of any kind. To the maximum extent permitted by applicable law, Cyber PNM disclaims all implied warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Cyber PNM does not warrant that the Services will be uninterrupted, error-free, or completely secure, or that any defects in the Services will be corrected. Cyber PNM makes no warranties or representations regarding the accuracy, reliability, or completeness of the information, materials, or Documentation provided.

10.2.    Customer acknowledges and understands that (a) Cyber PNM is not a law firm and does not provide legal advice, opinions, or recommendations and (b) it is solely responsible for any instructions, decisions or actions taken based on or in relation to the use of the Services. Cyber PNM is not responsible for Losses resulting from or relating to Customer’s instructions in actions in relation with the Services. The Services, including any Aggregated Threat Data, are for informational purposes only and should not be construed as legal advice or as a substitute for obtaining legal advice from a qualified attorney. Cyber PNM is not liable for Customer’s reliance on the Aggregated Threat Data, nor from any Losses resulting thereof. The Monitoring Services may not be exhaustive, nor identify all risks and threats regarding an End User. The End User Data available for processing is limited and the Risk Scoring Services may be misrepresentative.

10.3.    The Risk Scoring Services provided by Cyber PNM may involve the use of algorithms, artificial intelligence, or other automated technologies to analyze and process data (“Data Analytics”). While Cyber PNM deploys commercially reasonable efforts to provide accurate and reliable Data Analytics, Customer understands and agrees that Data Analytics may involve certain limitations, assumptions, and potential inaccuracies. Cyber PNM does not guarantee the accuracy, completeness, or suitability of the outputs of Data Analytics, including as part of the Risk Scoring Services. Customer is responsible for making its own independent assessment of the outputs obtained from the Risk Scoring Services, and for making any related determination. Cyber PNM is not liable for any Losses resulting from reliance on the Risk Scoring Services. 

11.    INDEMNIFICATION

11.1.    Cyber PNM will indemnify, defend, and hold harmless Customer (including its directors, officers, employees, agents, and Authorized Affiliates (the “Indemnitees”) from and against any third-party Losses resulting from (a) an IP Claim and (b) its gross negligence, fraud or wilful misconduct. The foregoing indemnification obligations shall not apply to the extent it relates to Customer’s breach of the TOS, modifications to the Services not made or authorized by Cyber PNM, or any combination of the Services with third-party products or services not provided or authorized by Cyber PNM, including any Third-Party Services.

11.2.    Customer will indemnify, defend, and hold Cyber PNM and its Indemnitees harmless from and against any third-party Losses resulting from (a) the use of the Services in violation of Section 3 and (b) its gross negligence, fraud or wilful misconduct.

11.3.    The indemnified party will promptly notify the indemnifying party in writing of any claim for which indemnification is sought pursuant to the TOS. The indemnifying party will have the exclusive right to control the defence and settlement of such a claim, provided that the indemnified party may participate in the defence and settlement at its own expense and with its own counsel. The indemnified party will reasonably cooperate with the indemnifying party in the defence and settlement of such a claim. Neither party will settle any claim that would impose any liability or obligation on the other party without the other party’s prior written consent, which shall not be unreasonably withheld or delayed.

12.    LIMITATION OF LIABILITY

12.1.    Except in case of gross negligence, wilful misconduct, or fraud, neither party will be liable to the other party for consequential, incidental, special, indirect, or exemplary damages, or any loss of profits, revenue, data, or business opportunities, arising out even if apprised of the likelihood of such damages occurring.

12.2.    To the greatest extent permitted under applicable law, except for the exclusions, neither party will be liable to the other, including their Affiliates, directors, officers, suppliers or representatives for damages exceeding the Fees paid by Customer in the 12 months preceding the event which gave rise to the claim. Notwithstanding the foregoing, the maximum aggregate liability in case of a breach of an indemnification obligation will be of twice the foregoing amount. 

12.3.    The TOS allocate the risks between the parties reflected in the pricing, and each provision limiting liability, disclaiming warranties, or excluding damages is severable and independent. The limitations set forth in Section  [Limitation of Liability] do not apply to bodily harm, or to other matters for which a party cannot exclude its liability under applicable laws. 

13.    TERMINATION; SUSPENSION

13.1.    The term shall commence on the Effective Date and continue for the duration of the then-current Subscription Term unless terminated in accordance with the TOS (the “Term”). 

13.2.    Either party may terminate part or all the TOS for convenience upon written notice of 30 days to the other party. If part or all the TOS are terminated for convenience by Customer, all Fees due until the end of the then-current Subscription Term will be due immediately. Cyber PNM will have no other rights due to an early termination by Customer, and the payment of the Fees is considered a reasonable payment for the damages, including, if applicable, pursuant to Art. 2129 Civil Code of Quebec.

13.3.    Each party may terminate part or all the TOS in the event of a material breach by the other party, which has not been cured within 30 days of receiving written notice of such breach from the non-breaching party. Notwithstanding the foregoing, each party may terminate part of all the TOS immediately upon written notice to the other party if the other party commits a material breach of the TOS and this breach is uncurable or cannot reasonably be cured within a 30-day period from the date of written notice of such a breach from the non-breaching party. 

13.4.    Either party may terminate the TOS by providing a written notice to the other party if this party (a) becomes insolvent or is unable to pay its debts as they become due; (b) files a petition in bankruptcy, reorganization, or similar proceeding, or, if filed against, such petition is not removed within 90 days after such filing; (c) discontinue its business; or (d) a receiver is appointed or there is an assignment for the benefit of the creditors. Such termination shall be effective immediately upon the receipt of the written notice by the affected party.

13.5.    If the TOS is terminated for any reasons, (a) the sections of the TOS which should be their nature survive the Term will survive; (b) the rights and licenses granted herein will cease; (c) Cyber PNM will cease to use the Customer Domain and Marks. So long as all Fees have been paid in full by Customer, Cyber PNM will assist in the orderly transfer of the Customer Domain to a designated third-party, if Customer makes such request within 30 days of the end of the Term.

13.6.    If part or all the TOS is terminated pursuant to Sections 13.3 and 13.4 due to Customer’s breach, the Fees due until the end of the then-current Subscription Term will be due by Customer. 

14.    GENERAL PROVISIONS

14.1.    Unless agreed otherwise in an Order Form, the laws of the Province of Quebec, and the applicable laws of Canada, shall govern the TOS, and the parties attorn to the exclusive jurisdiction of the competent courts in the judicial district of Montréal, Quebec. The United States Convention on the International Sale of Goods is specifically excluded from the application to the TOS.

14.2.    Cyber PNM is not responsible for any disputes between Customer and Distributor. Cyber PNM has no obligation to participate in such a dispute. Customer can lodge a complaint about a Distributor at legal@cyberpnm.com.

14.3.    Unless specifically indicated otherwise, in case of a conflict between the Order Form and the TOS, the latter will prevail. The TOS does not constitute the entire agreement between the parties on the subject matter thereof, superseding any prior agreements. There are no implied terms, conditions, commitments, or warranties not expressly provided herein. No waiver or course of dealing will modify, interpret or supplement the terms. Any provision found unlawful by judicial interpretation will be ineffective to the extent of such prohibition, without materially adverse effect on any party. The TOS does not establish a partnership or joint venture between parties, nor grant either party the authority to assume or create any obligation in the name of the other. If Cyber PNM makes any modifications to the TOS, such modifications will not apply during the Subscription Term, nor any automatic renewals set forth herein. These TOS may only be amended by a written instrument executed by both parties. 

14.4.    Except regarding a payment obligation, neither party will be liable for any failure or delay in performing its obligations under the TOS due to Force Majeure. The affected party will promptly notify the other party and make efforts to mitigate the impact of such an event on the other party. If the Force Majeure continues for more than 30 days, either party may terminate the TOS without any liability or further obligation to the other party, except for any accrued but unpaid Fees due to the date of termination. Fees paid in advance corresponding to Services to be provided after the date of termination will be reimbursed in pro rata of the time remaining in the Subscription Term. 

14.5.    Neither party may assign the TOS without the other party’s consent, except in case of a sale of part or all its assets, a bona fide corporate reorganization, or a merger and acquisition, in which case, the affected party may assign the TOS upon written notice to the other party.

14.6.    Customer agrees that it has been presented with a French version of the TOS, which is of substantially similar quality and content. Customer waives the right to use the French version of the TOS and agrees to use this English version. Le client est d’accord que la version française de cette Entente, laquelle est d’une qualité et d’un contenu substantiellement similaire, est a été présentée pour revue. Le client renonce à son droit d’utiliser la version française de cette Entente, et accepte d’utiliser la version anglaise.

14.7.    Any notice or communication required or permitted under the TOS shall be in writing and shall be deemed to have been duly given (a) when delivered in person; (b) when sent by confirmed email or electronic messages or (c) when sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the parties at the addresses set forth in the Order Form, or in the case of Cyber PNM, at legal@cyberpnm.com. Notice shall be deemed effective upon receipt.

14.8.    Unless indicated otherwise in an Order Form, or unless such consent is withdrawn in writing, Customer consents to Cyber PNM’s may use Customer’s name, logo, and marks to identify Customer in lists of clients. Customer can withdraw its consent at any time at legal@cyberpnm.com, or in an Order Form, and Cyber PNM will not use Customer’s name, logo, and marks as part of lists of clients.
 
Exhibit A 

1.    TECHNICAL SUPPORT

1.1.    Technical Support is provided from Monday to Friday, 9 AM to 5 PM ET, excluding for statutory holidays applicable in Canada (the “Operating Hours”) to End Users by way of support tickets. The Technical Support is available for the Cyber PNM Solution’s current version, or otherwise, as indicated in the Documentation. Each support ticket is addressed based on its severity. Cyber PNM will respond to support tickets within the response time and will conduct commercially reasonable efforts to resolve such support ticket without undue delays.

2.    AVAILABILITY TARGET

2.1.    The Cyber PNM Solution will be available 365 days per year, 24 hours per day, with an Uptime of 98.5%. “Uptime” means the number of minutes during which the Cyber PNM Solution is available in each month, when such availability is defined as the accessibility, usability and reasonable perform of the critical functionalities of the Cyber PNM Solution. 

2.2.    Cyber PNM may perform scheduled maintenance on the Service from time to time, including upgrades, updates, and other modifications to improve the Service. Cyber PNM will provide reasonable advance notice to Customer of any scheduled maintenance that may affect the availability of the Service.

3.    EXCLUSIONS

3.1.    The Uptime requirements in this Exhibit A will not apply during scheduled downtime, which shall be of a maximum of 4 hours per month. Cyber PNM will deploy best efforts to inform Customer before maintenance periods, except if prevented from doing so by the circumstances, such as an urgent security patch.

3.2.    The obligations in this Exhibit A do not apply if caused or resulting from (a) an event of Force Majeure; (b) Third-Party Services; (c) the use of the Services in violation of the TOS; (d) Customer’s unauthorized acts or omissions and (e) unsupported versions of the Cyber PNM Solution.

3.3.    Customer may terminate the TOS for cause pursuant to Section  if Cyber PNM materially breaches the TOS, or if Cyber PNM commits 3 successive breaches of the Uptime requirements or other service levels set forth in this Exhibit A.