Helio Sector Terms of Service
April 2020
The terms and conditions of this Service Agreement (“Agreement”) are made between Helio Sector (“Helio”, “we,” “us,” or “our” and any user as defined in Section 1. g. (each an “Authorized User” and, collectively, “Authorized Users”, “you”, “your”). Helio Sector and Authorized Users are each a “Party” and collectively referred to as the “Parties.”Authorized Users are gaining access to one or more Service(s) as more specifically defined in Section 1(a) below, which may be delivered through this website (“Site“) or other third-party website operated by our Service Provider or Sources (both as defined below) (“Service Provider Websites”). In some instances, Authorized User may be gaining access to Services through a sponsoring organization (“Sponsoring Organization“) that provides Authorized Users other products, solutions or resources (“Sponsoring Organization Resources“) that are entirely beyond Helio’ purview or control.
BY CLICKING THE ACCEPTANCE BUTTON, ACCESSING THE SITE, USING OR INSTALLING ANY PART OF THE SERVICES, INCLUDING ADVICE SERVICES OR CONTENT SERVICES, YOU ASSERT THAT YOU ARE AN AUTHORIZED USER AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IN ADDITION TO THE PORTION OF THE SERVICES DELIVERED THROUGH THE SITE, THIS AGREEMENT APPLIES TO THE SERVICES BEING PROVIDED ON THE TELEPHONE, BY EMAIL OR IN PERSON TO AUTHORIZED USERS PRIOR TO AND SUBSEQUENT TO THEIR ENTERING INTO THIS AGREEMENT. IF AN AUTHORIZED USER DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, IN WHICH CASE, HELIO WILL PROMPTLY CANCEL THIS TRANSACTION AND THE AUTHORIZED USER MAY NOT ACCESS ANY SITE, USE, REQUEST OR INSTALL ANY PART OF THE SERVICES. ALL TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE.
1. SERVICE TERMS
a. Description of Services. Helio offers and facilitates access to various services primarily in the area of cybersecurity including but not limited to consultation services, compliance auditing, security trainings, assessments, disaster recovery management, threat hunting, email security services governance and policy services, managed security services, general advisory services including but not limited to Advice Services and Content Services (“Services“). Authorized Users may gain access to one or more or a combination of these Services in the course of this Agreement. Regardless of which Services the Authorized User has access to, the terms of this Agreement apply. Services are not limited to, but may specifically include: (i) Telephone or online access to various advisors for guidance and consultative support, whether submitted via phone or email or referencing Authorized User content when the Service used permits submission of Authorized User content, (“Advice Services“); (ii) Site access to content resources and solutions (“Content Services“);. The Services are designed to provide general guidance to cybersecurity questions general consultative manner that can be answered without the need for extensive investigation or research. If an Authorized User has a question that requires time or research beyond the scope of the Services provide, Authorized Users may need to retain counsel or an expert to address such a question, whether or not such Service is provided by Helio or a Service Provider (defined below). In all instances, Services may include advice and guidance; however, neither Helio, any Service Provider (defined below), any Source (defined in Section 2(c) below), or any Sponsoring Organization shall be responsible for the ultimate decisions or actions an Authorized User makes as a result of its use of any Services at any time.
b. Services Terms. Cyber protection, cyber technology and the legal obligations associated with such are rapidly evolving and changing. As such, the Services are not intended to provide assurance nor supplant the Authorized User’s obligations to comply with applicable law. Additionally, the Services do not supplant any duty imposed upon any Authorized User to comply with applicable law. Authorized User shall at all times ensure complete compliance with the same, Helio is constantly changing and improving the Services, and may add or remove functionalities or features, or may suspend or stop the Services altogether at any time and in its sole discretion. Helio may stop providing the Services to any Authorized User or add or create new limits to the Services (including a number of Authorized Users allowed) at any time and in its sole discretion.
c. Intellectual Property. Helio is the owner of all right, title and interest to the Site, Services and the underlying software and systems, including all copyrights, patents, trademarks, and other intellectual property rights. The Services are proprietary to Helio and are protected by intellectual property laws and international intellectual property treaties. Authorized User does not own the Services nor shall it be deemed to have acquired any right, title or interest in the Services (including any license) whether expressly, by implication, estoppel, or otherwise, except for the limited right to use the Services during the subsistence of this Agreement following the terms hereof. Subject to the timely payment of all fees (if applicable) and the terms and limitations outlined in this Agreement or in accessing the Site, Helio agrees to provide Authorized User with non-transferable non-sublicensable and non-exclusive access to the Services subscribed for by the Authorized User. All third-party content or Sponsoring Organization Resources submitted to or facilitated through the Site are not part of the Services and shall be subject to the applicable terms and conditions of use of such content or Sponsoring Organization Resources prescribed by the relevant third party.
d. Accessibility. Authorized User agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) Authorized User’s failure to timely pay any fees for the Services (ii) equipment malfunctions; (iii) periodic maintenance procedures, scheduled downtimes, or repairs which Helio may undertake from time to time; (iv) network issues; (v) Authorized Users’ use of third party materials, misuse of the Services or underlying software, or use of the Services or the underlying Software other than in compliance with the express terms of the Agreement; (vi) any force majeure events or other causes beyond the control of Helio (including any disruptions at the end of the third-party Service Providers) or which are not reasonably foreseeable by Helio. Helio shall not be liable in any manner for such interruption or discontinuation of the Services due to any of the reasons mentioned above.
e. Equipment and Facilities. Authorized User shall be solely responsible for providing, maintaining and ensuring compatibility with the Services, all hardware, software, electrical and other physical requirements for Authorized User’s use of the Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Services. In case of Services performed at Authorized User’s location, the Authorized User shall ensure that the personnel or representatives visiting your facility is provided access to Authorized User ‘s premises, employees, and equipment and a safe and secure work environment along with necessary facilities at all times while they are on the location to enable effective provision of Services.
f. Sources. Authorized User agrees that all or some of the Services may be delivered by a variety of third-party Service Providers, Sponsoring Organizations, or other independent third-party service providers, independent third-party sources, or publicly available sources (individually referred to as “Source” and collectively as “Sources“). The Authorized User understands that Helio does not warrant the accuracy of or assumes any liability for any Services provided by such Source and Helio does not warrant the same in any manner. Helio merely acts as a facilitator for the Services provided by such Sources and any claim arising from any such Services shall be made directly against the relevant Source without any recourse to Helio. Access to any Services will be facilitated as general best practices support, and each Authorized User hereby expressly acknowledges and agrees that the provision of and access to such Services is subject to the specific terms and conditions of each of the Sources for such Services which shall be complied with by the Authorized User in addition to the terms contained hereunder. Notwithstanding Section 7 of this Agreement, the Authorized User further acknowledges that in the event the law(s) applicable to the topics addressed in the Authorized User’s use of the Services changes after the date the Services are accessed by the Authorized User, whether through the Advice Services or Content Services, that neither the Sources nor Helio will contact the Authorized User concerning any such changes. The Authorized User also acknowledges that to the extent the law(s) applicable to the Content Services or Sponsoring Organization Resources changes after the date is it first made available to the Authorized User through the Site, that said Content Services or Sponsoring Organization Resources will be updated as soon as is reasonably practicable.
g. Sponsoring Organization Resources. Materials and/or information provided by a Sponsoring Organization (“Sponsoring Organization Resources“), are not considered as Services and are, therefore, not subject to the terms of this Agreement. Helio is simply facilitating access to Sponsoring Organization Resources, which are independent third-party content. In any instance where an Authorized User gains access to Services through a Sponsoring Organization’s website, Helio assumes no responsibility for Authorized User’s ability to access Services should Sponsoring Organization’s website be inaccessible or malfunctioning.
h. Authorized Users. Authorized Users include:
i. any person or entity that opens an account with Helio for Services;
ii. any person or entity that accesses the Site or Services
iii. those employees who are specifically authorized by their organization to use the Services; or
iv. a broker, third party administrator, authorized re-seller, sales representative or other representatives from a Sponsoring Organization or an Authorized User.
Authorized User may upload and/or submit content to Helio, and by doing so the Authorized User grants Helio and any Source referencing the Authorized User’s content a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use such content to facilitate and improve Services to the Authorized User and in aggregate form for data analysis beyond the Authorized User to improve and enhance the Services. Nothing in this Agreement shall restrict other legal rights Helio may have to Authorized User content, for example under other licenses. In the instance of any content uploaded by Authorized User to the Site, Authorized User shall be responsible to ensure all content is accurate, free from error and free from any virus or imperfection. Authorized User shall scan all content for viruses or other malware before uploading to Helio. Helio reserves the right to remove Authorized User content for any reason, at its discretion, including, but not limited to, if such content is identified to contain any viruses, malware or other issue outlined in Section 4 below. Any content uploaded/submitted to Helio will not be reviewed to determine whether the content itself is compliant with applicable law or best practices, but will instead be used in the course of rendering Services to the Authorized User. Said materials will be retained for up to six (6) months post-termination of this Agreement with the Authorized User.
i. Pricing. To the extent Authorized Users pay any fees for access to any Services directly and any additional Buy-Up solutions with any Service Provider or Source through the Site, pricing is subject to change at any time in Helio’ sole discretion with at least ten (10) days advance notice to the Authorized User. Authorized User will maintain the right to 1). continue the Services by accepting the change in pricing or 2) terminate its use of Services before the new pricing going into effect. HELIO DOES NOT ISSUE ANY REFUNDS (PRO-RATED OR OTHERWISE) ONCE PAYMENT FOR ANY BUY-UP OR SERVICES IS RECEIVED, ABSENT A SERVICE PROVIDER OR SOURCE INDICATING OTHERWISE. AUTHORIZED USERS MAY SEEK OUT ANY REFUND POLICIES DIRECTLY WITH ANY SERVICE PROVIDERS OR SOURCES, TO THE EXTENT ANY SUCH OPTIONS ARE AVAILABLE.
2. LIMITATIONS
a. Security. Authorized Users shall be solely responsible for the security, confidentiality, and integrity of all messages and the content that the Authorized User receives, transmits, uploads or stores on the Site or otherwise for the purposes availing the Services. Authorized Users shall be solely responsible for any authorized or unauthorized access to Authorized User’s account by any person. Authorized User agrees to bear all responsibility for actions taken under their account access and for maintaining the confidentiality of their password. Additionally, Authorized User shall be responsible for all use of the Services and applicable fees incurred. Authorized Users agree to take commercially reasonable best efforts to prevent access to the Services (whether by internet, phone or otherwise) by any person other than Authorized Users, to report promptly to Helio any access to the Services by unauthorized persons, and to indemnify Helio against all actions, causes, claims, damages, debts, demands or liability, including all costs and attorney’s fees, arising in whole or in part from access to the Services through Authorized User’s account by unauthorized persons.
b. Confidentiality. Helio respects each Authorized User’s confidentiality. Helio will not disclose or publish any confidential information about an Authorized User or Authorized User’s account, other than to any Sources as is necessary to provide Services, without Authorized User’s prior consent unless Helio has a good faith belief that such action is necessary to (i) comply with legal process or other legal requirements of any governmental authority, (ii) protect and defend the rights or property of Helio; (iii) enforce this Agreement; (iv) protect the interests of other Authorized Users of the Services; or (v) operate or conduct maintenance and repair of Helio services or equipment, including the Services as authorized by law. However, Authorized Users shall not expect confidentiality concerning the Internet generally. Authorized User’s IP address is transmitted and recorded with each message Authorized User sends from the Services. Helio owns all data, communication, and information as a result of Services. Helio may disclose or publish non-confidential information about an Authorized User or Authorized User’s account and usage including, but not limited to, statistical data, trends, traffic, logins, access to Content, specific comments or polling results concerning the Authorized User’s experience with the Services, general issues supported through Advice Services, actual un-identified questions answered through Advice Services and other information regarding and resulting from Authorized Users’ type of use and frequency of use of the Services. Authorized Users’ specific details of the specific communications as part of the Advice Services with Service Providers are strictly confidential and will not be disclosed or published by Helio except on an un-identifiable basis.
c. Service Providers. Helio facilitates access to a variety of contracted third-party service providers and advisors across various Services (each a “Service Provider” and collectively “Service Providers”). In the instance that a Service Provider is a law firm which delivers Advice Services to an Authorized User, Authorized Users acknowledge that in the ordinary course of representing clients, any Service Providers may be or become adverse to a current Authorized User while providing Advice Services; thus, by continuing with any Advice Services inquiry, each Authorized User agrees that it may not assert Service Provider’s provision of services through the Advice Services as a reason to disqualify Service Provider. While the Advice Services are confidential, the use of the Advice Services does not create an ongoing attorney-client or confidential relationship between any Service Provider and any Authorized User, and therefore Service Providers may not perform any conflict check or other due diligence before providing Advice Services to any Authorized User.
d. No Guarantees. By using the Services, Authorized User acknowledges and agrees that neither Helio, any Source nor any Service Provider makes any guarantee that an Authorized User or its organization will achieve a specific result, including, but not limited to, greater compliance with applicable regulations, breaches or losses as a result of using the Services. Authorized User agrees not to make a claim against Helio alleging that the Services caused or contributed to or did not prevent a loss, breach or claim against the Authorized User or its organization or any third party.
e. Helio Not a Service Provider Re-Seller. While there may be opportunities to purchase additional solutions within the Site (“Buy Up”), Helio is not acting as a re-seller for any Service Provider or any Sources. Helio is simply facilitating access to other solutions for Authorized Users’ consideration. Any additional Buy Up made by Authorized Users with any Service Providers or Sources (even if made through the Site) shall be at the sole discretion and decision of the Authorized Users, and Authorized Users acknowledge that Helio shall not be responsible for any sale, implementation, execution, warranties, guarantees, or refunds (full or pro-rated) of any kind involving any additional Buy Up by Authorized Users with any Service Providers or Sources through the provision of Services, absent a Service Provider or Source indicating otherwise. Authorized Users may seek out any warranties, guarantees or refund policies directly with any Service Providers or Sources, to the extent any such options are available.
f. No Notice of Insurance Claim. Authorized User’s use of the Services does not constitute giving notice of an insurance claim, suit, or circumstance to your insurance provider. Authorized User acknowledges and agrees that it is solely the Authorized User’s responsibility to comply with the claims reporting obligations and procedures required by each insurance policy under which the Authorized User is a covered insured. For more information concerning the requirements on how and when such claim reporting is required, the Authorized User shall contact the applicable insurance carrier directly.
g. No Agency Created/No Legal Services Provided by Helio. The Parties agree and acknowledge that the relationship of the Parties is like an independent contractor. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other’s agent, partner, employee or representative. Helio is not an agent of the Authorized User and is not authorized to act on behalf of the Authorized User for any purpose other than the rendering of the Services. Helio is not a law firm, law practice, or the legal representative of any Authorized User, and does not represent any Authorized Users through the rendering of the Services. Authorized User’s use of the Services and the Advice Services provided by Service Providers does not include or constitute the rendering of legal advice to Authorized User by Helio and Helio assumes no responsibility or liability for the information or guidance provided by any Service Provider. Authorized User’s use of the Services and/or Advice Services and/or Content Services is not a substitute for obtaining legal or other advice from Authorized User’s attorney(s) or consultant. Authorized Users should seek the counsel of an independent attorney or consultant of the Services if an Authorized User has any questions regarding a legal matter or other issue or topic addressed through any of the Services. Authorized Users should never disregard or delay obtaining advice from their attorney(s) or advisor(s) because of something Authorized User has read or heard as part of the Services.
h. No Insurance Advice Provided. Services are pre-claim risk mitigation support only and do not in any way provide any advice on any insurance claims, any insurance coverage terms or any other insurance matters. Helio recommends Authorized Users engage their insurance broker or insurance carrier(s) and follow all specific claim reporting procedures as outlined by their insurance policy(s).
i. No Resources Provided by Helio. The parties agree that all resources or content provided by a Sponsoring Organization, an Authorized User, a Source, a Service Provider or another independent third party source do not come within the purview of this Agreement. Helio assumes no liability for any such resources or content provided by a Sponsoring Organization, an Authorized User, a Source, a Service Provider or another independent third-party source.
j. Limited License/Ownership. Helio gives Authorized Users a personal, revocable, royalty-free, non-assignable non-sublicensable and non-exclusive license to use the Services. This license is for the sole purpose of enabling Authorized Users to use and enjoy the benefit of the Services as provided by Helio, in the manner permitted by these terms. Authorized Users shall not, and shall not permit any other person to, access or use the Site or the Services except as expressly permitted by this Agreement. Authorized Users shall not:
i. copy, modify, distribute, sell, create derivative works or improvements of the Services;
ii. rent, lease, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or the underlying software systems to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; reverse engineer, disassemble, decompile, decode, adapt or otherwise gain access to or attempt to extract the code of the Services;
iii. bypass or breach any security device or protection used by the Services or underlying software or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
iv. input, upload, transmit or otherwise provide to or through the Services or Site, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
v. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Site, Helio’ provision of Services to any third party, in whole or in part;
vi. remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
vii. access or use the Services or the Site in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other customer, or that violates any applicable law;
viii. access or use the Services or the Site for purposes of competitive analysis of the Services, the development, provision or use of a competing service or product or any other purpose that is to Helio’ detriment or commercial disadvantage; orix. otherwise access or use the Services or the Site beyond the scope of the authorization granted under this Agreement.
k. Using Helio Services does not give any Authorized User ownership of any intellectual property rights in Helio Services or the content accessed. Authorized Users may not use content from Helio Services unless Authorized User obtains prior written permission from Helio or are otherwise permitted by law. These terms do not grant any Authorized User the right to use any branding or logos used in Helio Services. Helio retains and reserves all rights to the Services not granted herein.
3. Data Backup. Helio’s information technology infrastructure used in performing the Services is programmed to perform routine data backups as set out in our backup policy in effect from time to time. In the event of any loss, destruction, damage or corruption of data caused by the Services, Helio will, as its sole obligation and liability and as Authorized User’s sole remedy, use commercially reasonable efforts to restore the data from Helio’s then most current backup of such data following its then-current backup policy.
4. AUTHORIZED USER REPRESENTATIONS. Authorized User represents and warrants to Helio that:
a. Authorized User is over the age of eighteen (18) and has the power and authority to bind Authorized User’s organization and/or entity and enter into and perform Authorized User’s obligations under this Agreement;
b. all information provided by Authorized User to Helio is truthful, accurate and complete;
c. Authorized User shall comply with all terms and conditions of this Agreement;
d. Authorized User has provided and will provide accurate and complete registration information, including, without limitation, Authorized User’s legal name, address and telephone number;
e. Authorized User’s use of the Services is for the benefit of Authorized User’s organization, as an employer, only, and not for any other third party;
f. all Authorized Users have acquired and maintain appropriate internal permissions from its own internal controls of Authorized User’s organization to use the Services on behalf of and in representation of Authorized User’s organization;
g. Authorized User will not provide unauthorized access to the Services to any third party who is not specifically authorized by Helio to access the Services, and
h. Authorized User is not a competitor of Helio or any organization that offers similar services to Helio, all of which are specifically prohibited from accessing the Site or using Services in any way;
i. Authorized User acknowledges the Services are proprietary and agrees not to use any access of Services to develop themselves or assist another party in developing similar or competing Services.
5. Should an Authorized User submit into Helio any content or a question under Advice Services, it will be subject to Helio’s current Privacy Policy (which may change from time to time) and document retention policies. Authorized Users agree that no content or information submitted in any form to Helio or any Source shall contain sensitive information, including, but not limited, to Personally Identifiable Information (PII), Protected Health Information (PHI), including information concerning social security numbers, complete dates of birth, banking numbers, debit card numbers, credit card numbers, driver’s license numbers, state-issued identification card numbers, financial account numbers or other financial information, security codes, access codes, or passwords that would permit access to a financial account. Should Authorized User submit any such sensitive information, Helio reserves the right to delete that information from its records immediately without notice.
6. Helio reserves the right to immediately terminate Authorized User’s use of the Services with no refund of any fees or monies paid to Helio as of the date of said termination, in the event it is determined that an Authorized User violated a requirement of Agreement, with such determination being made in Helio sole discretion. The failure of Helio to resort to any remedy provided under this Agreement, or under common law, available as a result of such a violation shall in no way affect the right of Helio to resort to any such remedy at any time thereafter, nor shall it be deemed to be a waiver as to any such violation. Notwithstanding the indemnification rights outlined in Section 8 of this Agreement, under no circumstances shall Helio or any Service Provider be held liable for consequences flowing from an unauthorized use of the Services, and the Authorized User, by proceeding to use the Services, agrees to indemnify, hold harmless and defend Helio and the Service Providers, to the maximum extent permitted by law, against all actions, causes, claims, damages, debts, demands or liability, including all costs and attorney’s fees, arising in whole or in part from any use of the Services by the Authorized User that violates this Agreement.
7. PROHIBITED USES. Authorized User is solely responsible for any and all acts and omissions that occur under Authorized User’s account or password and Authorized User agrees not to engage in unacceptable use of the Services which includes, without limitation, a. upload, post, email, transmit or otherwise make available any material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, offensive, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; b. upload, post, email, transmit or otherwise make available any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; c. make any statement verbally, in writing, or electronically to, or engage in any conduct of any type or kind toward, any Source, Service Provider, Sponsoring Organization or Helio, that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, offensive, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; d. impersonate any person or entity, including, but not limited to, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity, e. intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law; f. interfere, disrupt or attempt to disable the Services or gain unauthorized access to other accounts on the Services; or g. engage in any other activity deemed by Helio to be in conflict with the spirit or intent of this Agreement. Helio shall have the right to immediately suspend the Services and terminate this Agreement upon the Authorized User engaging in any of the above activities.
8. TERMINATION. This Agreement is effective upon Authorized User’s acceptance as set forth herein and shall continue in full force until terminated. Helio reserves the right, in its sole discretion and without notice, at any time and for any reason to a. remove or disable access to all or any portion of the Services; b. suspend Authorized User’s access to or use of all or any portion of the Services; c. and/or terminate or amend this Agreement.
9. PRIVACY POLICY. By entering into this Agreement you agree to the terms of Helio Privacy Policy, which can be found at https://heliosector.com/privacy-policy/ (the “Privacy Policy“). You acknowledge that Helio may use Service Providers to provide a portion of or the entire Services. More information concerning what data is collected and used by Helio and by its Services Providers and how it is used is available from Service Providers and in the Privacy Policy. Without limiting the Privacy Policy, you agree that Helio and the Service Providers may track certain data it obtains from you including data about your license, data about what version of the software and Services you are using, what operating conditions it runs under, data concerning your geographic location, information regarding any data breach, cyber incidents, and organizational cyber maturity and any other information it finds in the public domain about you, your company and its affiliates. If any user who accesses the Site or Services under your account (including, if you are a business customer, your employees or contractors) and makes a complaint or claim based on the tracking or collection of data under this Section 6, you agree that you shall be solely responsible for addressing any such complaints or claims. If Authorized User runs a risk of exposure to proprietary or otherwise protected information, Helio asks that you not elect to use the tool when there is a potential for exposure of such information.
10. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL HELIO NOR ANY SERVICE PROVIDER, NOR ANY OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, OWNERS OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM INACCURATE OR LOST DATA OR LOSS OF USE OR PROFITS ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED USER’S USE OF OR THE PERFORMANCE OF THE SERVICES. NEITHER HELIO NOR ANY SERVICE PROVIDER, OR ANY OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, OWNERS OR EMPLOYEES SHALL BE LIABLE FOR ANY LOSS, INTERRUPTION IN SERVICE, DELAY, DOWNTIME OR ANY OTHER FAILURE OF PERFORMANCE CONCERNING ANY OF THE SERVICES. IN NO EVENT SHALL HELIO OR ANY SERVICE PROVIDER’S TOTAL LIABILITY FOR DAMAGES EXCEED THE TOTAL FEES PAID BY THE AUTHORIZED USER TO HELIO HEREUNDER FOR THE MOST RECENT ONE MONTH PERIOD. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO AN AUTHORIZED USER IN SUCH STATE. IF AUTHORIZED USER IS DISSATISFIED WITH THE SERVICES, AUTHORIZED USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR AUTHORIZED USER TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT AS PROVIDED HEREIN.
11. DISCLAIMER OF WARRANTIES. NEITHER HELIO NOR ANY SERVICE PROVIDERS, NOR ANY OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, OWNERS OR EMPLOYEES WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, OR ERROR-FREE; NOR DOES HELIO OR ANY OTHER SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, OWNERS OR EMPLOYEES MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, INCLUDING THE ADVICE SERVICES OR THE CONTENT SERVICES. THE SERVICES ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. NEITHER HELIO NOR ANY OTHER SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE AGENTS, MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, CONCERNING THE SERVICES. NEITHER HELIO, NOR ANY SERVICE PROVIDER, OR ANY OF THEIR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, OWNERS OR EMPLOYEES WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. AUTHORIZED USERS EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SERVICES AND THE ACCURACY OR COMPLETENESS OF THE SERVICES, INCLUDING THE ADVICE SERVICES AND THE CONTENT SERVICES IS ASSUMED SOLELY BY AUTHORIZED USER. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO AN AUTHORIZED USER. IN SUCH STATES, THE LIABILITY OF HELIO AND OTHER SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE AGENTS, SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.FURTHER, THE SERVICES ARE BASED UPON PROVIDING INFORMATION AND BEST PRACTICES TO EDUCATE ITS USERS. NONE OF OUR OR SERVICE PROVIDER’S WRITTEN MATERIALS OR SERVICES ARE OR SHOULD BE CONSTRUED TO BE THE PROVISION OF LEGAL SERVICES, LEGAL ADVICE, LEGAL REPRESENTATION, THE PRACTICE OF LAW, OR A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. HELIO DISCLAIMS ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, THAT IT IS PROVIDING LEGAL ADVICE OR THAT ITS SERVICES GUARANTEE ANY PARTICULAR RESULTS OR AVOIDANCE OF LEGAL RISK OR LIABILITY. AUTHORIZED USER ACKNOWLEDGES AND AGREES THAT IT SHOULD AND WILL SEEK THE ADVICE OF ITS LEGAL COUNSEL TO OBTAIN LEGAL SERVICES, LEGAL ADVICE, OR LEGAL REPRESENTATION.
12. User Warranties. Authorized User acknowledges that the information received from the Site and Services may contain a data breach, cyber incidents, and organizational cyber maturity information. Authorized User acknowledges that you and any individual is given access to the data you receive from the Site and Services will not use the information in a manner that is unlawful or harmful to any other individual. You authorize that you are an authorized representative of any organization or individual in which you request data and that you have all appropriate authorizations to do so.
13. INDEMNIFICATION. Authorized Users agree to indemnify, hold harmless and defend Helio, its shareholders, directors, officers, members, managers, employees, agents, contractors, and other Service Providers, and independent third-party sources from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to (a) the breach this Agreement and/or the Privacy Policy; (b) Authorized User’s use of the Site and/or the Services, including any data, work, or communications transmitted or received by Authorized User and (c) any unacceptable use of the Services, including, without limitation, any statement, data or communication made, transmitted, or republished by Authorized User.
14. DISPUTE RESOLUTION. Any dispute, controversy or claim arising out of or relating to this Agreement shall be finally settled by binding arbitration conducted in the English language in Idaho Falls, Idaho under the commercial arbitration rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by a single arbitrator selected by the Parties from a list furnished by the AAA. If the Parties are unable to agree on such Arbitrator from the list, such Arbitrator shall be appointed by the AAA or in the alternative, each Party shall select one arbitrator who, in turn, shall select the Arbitrator who shall arbitrate the dispute. Disputes about arbitration procedure shall be resolved by the Arbitrator or if before their appointment, by the AAA in Idaho Falls, Idaho. The Arbitrator shall be authorized to grant interim relief, including preventing the destruction of goods or documents involved in the dispute, protect trade secrets or other intellectual property, and provide for security for a prospective monetary award. In no event shall punitive damages be assessed against either Party. Each Party shall bear its expenses, but the Parties will share equally the expenses of the Arbitrator and the AAA. The award of the Arbitrator shall be the sole and exclusive remedy of the Parties and shall be enforceable in any court of competent jurisdiction, subject only to revocation on grounds of fraud or clear bias on the part of the Arbitrator. Notwithstanding anything contained in this section to the contrary, each Party shall have the right to institute judicial proceedings against the other Party or anyone acting by, though, or under such other Party, to enforce the Party’s rights to injunctive or similar equitable relief, including relief to prevent the destruction of goods or documents involved in the dispute, protect trade secrets or other intellectual property, or provide for security for a prospective monetary award.
15. Export Law. Authorized User agrees to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Services nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by such laws and regulations.
16. SECURITY. Helio follows generally accepted industry standards to protect the information we collect. That said, no data security measures are 100% secure. Therefore, while we implement reasonable physical, technical, and administrative measures to protect the information we collect, we cannot guarantee its absolute security.
17. CHANGES TO THESE TERMS OF SERVICE We have the right to change these Terms of Service without prior notification to you. If we make a change to these Terms of Service, we will change the effective date. We suggest you review these Terms of Service from time to time.
18. GOVERNING LAW, VENUE, AND ATTORNEY’S FEES. This Agreement shall be in all respects governed by, construed, and enforced following the laws of the State of Idaho, including all matters of construction, validity, and performance. Authorized User hereby consents to the jurisdiction of courts in Idaho Falls, Idaho and waives any objections to such jurisdiction. In any action or proceeding arising out of this Agreement, the Party prevailing in such action shall be entitled to recover its reasonable attorneys’ fees and costs.
19. CONTACT If you have any questions regarding these Terms of Service, please contact us at https://www.heliosector.com/contact.