THESE TERMS AND CONDITIONS (the “TERMS”) entered between Bitdefender and Manufacturer (“Vendor”) shall govern the business relationship between the parties and sets forth the terms on which Manufacturer shall be enrolled in the Bitdefender IoT Certification Program (details available here).
Art. 1 DEFINITIONS
“Vendor” or “Manufacturer” shall mean the legal entity subjected to the Bitdefender IoT Certification Program;
“Device” shall mean the particular Vendor product subjected to the Bitdefender IoT Testing Methodology;
“Firmware” shall mean the permanent software programmed by the Vendor into a read-only memory of the subject device;
“Update” shall mean the latest version of the firmware made available by the Vendor;
“IoT Review” shall mean the totality of tests performed by Bitdefender to assess the security & integrity of an IoT Device;
“End User” shall mean any person or entity that is entitled to receive the results of the testing performed by Bitdefender on the Device as per the Bitdefender IoT Certification Program, which shall be ascertained through a Certificate issued by Bitdefender under these Terms;
“Certificate” shall mean the award granted by Bitdefender where the Device has successfully completed the Bitdefender Labs IoT Security review as per the IoT Testing Methodology;
“Verified” seal shall mean the visual logo confirming the Device has successfully completed Bitdefender Labs IoT Security review as per the IoT Testing Methodology;
“IoT Testing Methodology” shall have the meaning given to it in the Bitdefender IoT Certification Program.
“Territory” shall mean the geographic territory in which the Vendor is entitled to advertise or make in any way public the Certificate or any of the information contained within such Certificate.
Art. 2. CERTAIN RIGHTS GRANTED
Vendor is hereby granted the sole and exclusive right to use the Certificate as per the Terms.
Art. 3. FINANCIAL TERMS
Enrollment in the Bitdefender IoT Certification Program is free of charge and Bitdefender has received no payment or any other contribution for issuance of any Certificate. Moreover, Bitdefender made no financial contributions towards the Vendor for the later to advertise/ make public its enrollment in the Bitdefender IoT Certification Program or any Certificate.
Art. 4. RIGHTS AND OBLIGATIONS
Bitdefender is entitled to test any Vendor Device at its own choice without having to comply to any Vendor requests regarding testing a particular Device. Specifically, Bitdefender is not obliged to respond to any requests in this respect regardless of (i) the type of the Device, (ii) the identity of the Vendor submitting such request, (iii) whether the Device has been previously tested in the past, and (iv) regardless of any previous results of such past testing. Bitdefender grants no exclusivity under the Bitdefender IoT Certification Program.
Bitdefender undertakes that the testing is done independently, objectively as per the IoT Testing Methodology and without any Vendor interference. Moreover, neither the Vendor nor any third party has particularly requested the testing and had in no way influenced the results of such testing.
In case the Device fails to pass the tests as per the IoT Testing Methodology, Bitdefender will notify Vendor on the vulnerabilities found, giving the Vendor access to all findings, as per the “Bitdefender Policy for IoT Public Vulnerabilities Disclosure”, available here.
Bitdefender may, but it’s not obliged to perform another test after Vendor has implemented necessary measures to fix the vulnerabilities found.
The Manufacturer/Vendor shall use the certification only during its validity, only within the Territory and only for the purposes for which it was issued. Choosing how to use the Certificate is entirely Vendor’s responsibility.
Bitdefender may prepare and use as it deems fit any marketing material in relation to a Vendor’s participation in the Bitdefender IoT Certification Program and regarding all testing results for each Device tested under this Program. Moreover, Bitdefender may issue any press release and/or share the findings with partners in this respect without Vendor’s prior written approval.
Art. 5 OWNERSHIP
Bitdefender and its affiliates retain ownership of all intellectual property rights (including but not limited to right, title, and interest) regarding the Bitdefender IoT Certification Program including all IoT Testing Methodology (including, if applicable, all modifications, derivative works, developments, improvements, enhancements, and all intellectual property rights therein) while extending only the usage rights for the Certificate set forth in this Agreement. Bitdefender does not transfer any right, title, or interest to any such Bitdefender IoT Certification Program or any of Bitdefender’s intellectual property rights to Vendor/Manufacturer, End Users or any third party.
Bitdefender retains ownership of any marketing materials, including analysis and reports prepared as a result of a Vendor being enrolled in the Bitdefender IoT Certification Program and the results of such enrollment.
Art. 6. REPRESENTATIONS AND BUSINESS PRACTICES
In no event shall Vendor make any representation, warranty, or guarantee by or on behalf of Bitdefender; regardless of the results contained in the Certificate. Vendor shall always refer to Bitdefender and its IoT Certification Program in a positive and professional manner. Further, Vendor shall not promote or advertise any awards, certifications or other third-party acknowledgements that may pertain to Bitdefender or any of its products or services.
Vendor agrees to comply with all applicable federal, state, and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) in connection with its enrollment in the Bitdefender IoT Certification Program.
Vendor is not permitted to use Bitdefender’s name, any Bitdefender marks/logos, or make any other mention (whether on the Vendor’s Device, any other of its products or services, their collateral, on Vendor’s Web site or other internet properties or elsewhere, or referentially) of Bitdefender or its products/ services. Moreover, using the registered symbols (R), (TM) or (C) symbol is prohibited; direct Llnking to Bitdefender’s Website is not allowed.
Art. 7 WARRANTIES AND LIABILITIES
Each party represents and warrants to the other party that: (a) it is a legal entity duly created, formed and organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation, or organization; (b) there is no pending or threatened action (or basis therefor) for its dissolution, liquidation, or insolvency; (c) it is duly qualified or licensed as a foreign corporation in each jurisdiction in which its assets are owned or leased, or the nature of its business makes such qualification or licensing necessary; (d) it has all requisite corporate power and authority necessary to execute and deliver these Terms and to perform its obligations hereunder; and (e) these Terms as accepted or agreed upon constitutes a valid, legal and binding obligation of such party enforceable against it in accordance with its terms.
ENROLLMENT IN THE BITDEFENDER IOT CERTIFICATION PROGRAM AND ALL SUBSEQUENT ACTIVITIES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BITDEFENDER DISCLAIMS ALL WARRANTIES REGARDING ENROLLMENT IN THE BITDEFENDER IOT CERTIFICATION PROGRAM AND TESTING OF THE DEVICES, OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, NON-INTERFERENCE OF THIRD PARTY RIGHTS OF PRIVACY AND PUBLICITY BY FILTERING, DISABLING OR REMOVING SUCH THIRD PARTY’S SOFTWARE, SPYWARE, ADWARE, PROGRAMMING,COOKIES, EMAILS, ADVERTISEMENTS OR THE LIKE, ACCURACY OF DATA, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
ANY CLAIMS AGAINST BITDEFENDER (INCLUDING THOSE COMMENCED BY VENDORS, END USERS OR THIRD PARTIES) ARE HEREBY EXCLUDED.
BITDEFENDER DOES NOT WARRANT THAT THE TESTING PERFORMED UNDER THE BITDEFENDER IOT CERTIFICATION PROGRAM (I) WILL MEET VENDOR’S, END USERS’ OR ANY THIRD PARTY’S REQUIREMENTS; (II) WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED, AND BITDEFENDER HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED THERETO TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
BITDEFENDER DISCLAIMS ALL WARRANTIES, LIABILITIES OR RESPONSIBILITIES REGARDING VENDOR’S USAGE OF THE CERTIFICATE. IN ADDITION, BITDEFENDER DOES NOT WARRANT THAT BY ISSUING THE CERTIFICATE THE DEVICE TESTED IS FREE OF ANY SECURITY VULNERABILITIES.
Art. 8 LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OVERHEAD, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, FAILURE OF SECURITY MECHANISMS OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
Art. 9. INDEMNIFICATION
Vendor shall indemnify, defend, and hold Bitdefender and its directors, officers, employees, agents and attorneys harmless from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, or settlements, including all reasonable attorney’s fees, and expenses related thereto, directly or indirectly resulting from, relating to, arising out of, or attributable to or based upon: (a) any statements made by Vendor or their employees or agents related to the Vendor’s enrollment in the Bitdefender IoT Certification Program (including without limitation the results of the Device testing), except for statements that are a direct and correct reference to information in the Terms, the IoT Testing Methodology and marketing materials provided by Bitdefender for use in connection with the Bitdefender IoT Certification Program; and (b) any breach or alleged breach by Vendor of any of its obligations, covenants or warranties hereunder;
Art. 10 CONFIDENTIAL INFORMATION
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to any third party.
The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party to give the Disclosing Party the opportunity to defend, limit or protect against the disclosure).
The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm to the Disclosing Party that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
Notwithstanding the foregoing, Vendor agrees that Bitdefender may disclose Vendor as a legal person enrolled in the Bitdefender IoT Certification Program.
Art. 11. GOVERNING LAW AND JURISDICTION
These Terms and all related actions and proceedings relating hereto shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by Bitdefender in its sole discretion, the jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any such dispute shall be entitled to recover costs and expenses associated with resolving such dispute, including reasonable attorney fees.
Art. 12 TERM AND TERMINATION
This Certificate expires after 21 days from its issuance date or after any modification on the respective Device, that may alter the Device functionalities such as, but not limited to: firmware update performed on the tested Device, cloud parameter, API call, whichever comes first. Hence, the Vendor may distribute or publish the Certificate and Seal on its website, product, storefront etc, after accepting these Terms, for no longer than 21 days or until any modification is made on the respective Device whichever comes first, with no obligations or guarantees from Bitdefender.
Bitdefender has the right to withdraw the certification during its term, at any time, based on its own exclusive decision.
The Terms shall be in full force and effect once accepted by the Vendor for a period of one year.
Notwithstanding any provisions to the contrary herein, the provisions of Article 1, 3, 4, 5, 6, 7, 8, 9 and 10 shall survive termination of the Terms.