Terms of Service
EFFECTIVE DATE: REVISED DATE:
Please read these terms of service (these “Terms”) carefully before using Probely as they form a contract between the person accepting these Terms (“you” or “your”) and Probely – Soluções de Cibersegurança, Lda. (“Probely, Lda.”, “we”, “us”, or “our”), a private limited liability company incorporated in Portugal, with registered offices at Rua Alfredo Allen 455, 4200-135 Porto, under registration and tax number PT514413735.
These Terms govern your access and use of
- the Web Application Vulnerability Scanner cloud based solution provided by us, or any subcontracted entity (the “Probely”);
- our websites or applications; and
- any written or electronic use or features guides or other documentation provided or made available by us (the “User Guides”) (collectively the “Service” or “Services”). The Terms also include compulsory pre-contractual information required by applicable law.
By registering on Probely or using any of the Services you agree to be bound by these Terms. If you are accepting these Terms or using the Services on behalf of an organization, you are agreeing to these Terms for that organization and representing to us that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with us and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning these Terms, please contact [email protected].
CHANGES TO THESE TERMS
We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Probely website - https://probely.com (the “Site”). Any changes will be effective on the date indicated at the top of the revised Terms. If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Service and/or by email to the email address associated with your account. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you object to such changes, you must cancel and stop using the Service by the effective date of such changes.
ACCESS TO THE SERVICE
- You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws.
- Probely, Lda. reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates, or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
- Probely’s site has been designed to operate on recent versions of most web browsers, namely Chrome and Firefox. Probely’s scanning service is intended for and has been designed to operate against any Web Application, as long as there’s connectivity between Probely’s servers and the server that hosts the Web Application being tested.
- fail to comply with these Terms,
- assign your contractual position to a third party without our prior consent and/or
- act in such a way as to cause losses to us or other users. If it is necessary to deactivate your login, we will inform you by e-mail.
- If a third party such as an employer created an account for you, that party has rights to your account and may manage and cancel your account. If you are an individual Registered User of the Service, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establish a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between us and such organization and controlled by such organization.
- Only you may use your Probely account. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide an approved mechanism for such use. We will never ask you to share your access details with other persons and we will not be liable for any loss or damage arising from any unauthorized use of your accounts. If you know or suspect that someone has access to your login and password, you must inform us immediately at [email protected].
- You may request, at any time, the cancellation of your account on the Site. However, with the exception of the situations specifically foreseen in applicable law and these Terms, cancellation does not confer any right to reimbursement of amounts already paid for the use of the Service.
CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
CONTRACTING THE SERVICE
- Unless otherwise stipulated by us, the use of the Service is dependent on the up-front payment of the Fee [established in our pricelist at https://probely.com/pricing]. The Fee is determined in accordance with the number of sites to be scanned and the duration of the service, which may be monthly or annual.
- The price list does not include VAT at the applicable legal rate. VAT will be included in the invoice if applicable.
- The amount due may be paid by credit card (e.g., Visa, American Express, MasterCard) or bank transfer following the receipt of our invoice. Bank transfers are only available for annual subscriptions.
- The invoice for the Service will be issued electronically with the information you provide us and sent to the e-mail address that you indicate. We assure you that the invoice guarantees the authenticity of its origin, the integrity of its content and its legibility.
- Once payment has been confirmed, you will receive an e-mail confirming the payment and the commencement of the Service.
SUSPENSION AND TERMINATION OF USE OF THE SERVICE
- We reserve the right to temporarily suspend or terminate your access to the Service at any time in our sole discretion, with or without notice, and without incurring liability of any kind, for any one or more of the following reasons: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause us to have legal liability or may disrupt others’ use of the Services; (c) the detection of suspicious behavior in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages or other emergency situation, as determined in Probely, Lda.’s discretion. If, in our sole discretion, the suspension is indefinite and/or Probely, Lda. has elected to terminate your access to the Service, we will use commercially reasonable efforts to notify you through the Service and/or by email to the email address associated with your account. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
- YOU HEREBY CONSENT AND ACKNOWLEDGE THAT YOU WISH TO INITIATE THE SERVICE AT ONCE AND THAT THIS CONSENT IMPLIES THAT YOU WILL NOT BE ABLE TO UNILATERALLY TERMINATE THIS CONTRACT WITHOUT JUST CAUSE WITHIN THE USUAL 14 DAY CONSUMER REMORSE PERIOD.
You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or Probely, Lda. and/or to build a similar service or website. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by Probely) to access or use the Service. In addition, you undertake that you will not and will not encourage or assist any third party to:
- modify, alter, tamper with, repair or otherwise create derivative works of the Probely or any software used in conjunction with it;
- reverse engineer, disassemble or decompile the software used to provide or access the Service, including the Probely, Lda.’s software, or attempt to discover or recreate the source code used to provide or access the Service, except and only to the extent that the applicable law expressly permits doing so;
- use the Service in any manner or for any purpose other than as expressly permitted by these Terms, or any other policy, instruction or terms applicable to the Service that are available on the Service (“Policies”);
- sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
- remove, obscure or alter any proprietary rights notice pertaining to the Service;
- access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
use the Service to:
- engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data;
- send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
- store or transmit inappropriate Content;
- interfere with or disrupt servers or networks used by us to provide the Service or used by other users’ to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any Software or the Service;
- access or attempt to access other accounts on Probely, computer systems or networks not covered by these Terms, through password mining or any other means;
- cause, in our sole discretion, inordinate burden on the Service or Probely’s system resources or capacity; or
- share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Service.
For the purpose of 7.1(f)(second part), you are entitled to no more than 2 concurrent scans of the same target or 60 scans of the same target on a monthly basis.
SERVICE LEVEL TERMS
- Probely’s SaaS offer shall use reasonable endeavours to ensure that the service is always available. Probely includes a guaranteed availability of 99%, and the Enterprise Plan a guaranteed availability of 99.9%, calculated on a 90-day period, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
- If Probely fails to meet the guaranteed availability, Customer will be eligible for a credit of 5% of one month of the subscription fee paid to Probely. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Service Level Credits shall be Customer’s sole and exclusive remedy in the event of any failure to meet the guaranteed availability. Such Credits will be applied to the next invoice following Customer’s request and Company’s confirmation that credits are applicable. In no event will Service Level Credits in any given year exceed 10.0% of the total annual Subscription Fees paid to the Company. If availability is less than 99% for two (2) months or more, Customer may terminate this Agreement at its discretion.
- Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
PROBELY PROPRIETARY RIGHTS
- When using the Probely, you will have access to the software stored at a data center, owned, leased, rented or used by us to provide the Service (the “Software”). During the term of the Service you have the non-exclusive, non-transferable right to access and use the Software exclusively for your internal business purposes and in connection with the Service. We reserve all other rights to the Software. Any Software access is provided on a subscription basis, and is licensed and not sold. Unless we notify you otherwise, your right to access and use the Software ends when your Service ends. The Software is subject to applicable export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use.
- As between Probely, Lda. and you, Probely or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by us. In the event that you provide comments, suggestions and recommendations to us with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, “Feedback”), you hereby grant to Probely, Lda. a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
- Probely, Lda. shall be the proprietor and have the right to compile, process and use the data generated by your use of the Services for statistical and commercial purposes. We warrant that such data shall be duly anonymized and aggregated, and, under no circumstance, will we identify you or any other user in this data.
PROBELY, LDA. PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE”. WE do not guarantee that the site or service are free from errors, bugs or viruses or that probely will perform as intended. We STRONGLY RECOMMEND THAT YOU USE PROBELY SOLELY IN STAGING AND TESTING SITES AND NOT AGAINST A PRODUCTION SITE. SHOULD YOU USE IT AGAINST A PRODUCTION SITE, YOU USE IT AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROBELY, LDA. MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. PROBELY IS A SOFTWARE TOOL DESIGNED TO IDENTIFY VULNERABILITIES IN SITES, BUT WE DO NOT WARRANT OR REPRESENT THAT IT WILL DETECT ALL VULNERABILITIES NOR SHALL WE BE LIABLE IF SOME VULNERABILITY IS UNDETECTED. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROBELY, LDA., ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, EVEN IF PROBELY, LDA. HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, WHERE APPLICABLE.
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Service. Any legal notices or other notices required by these Terms must be sent to us via email to [email protected], or via post to Probely’s registered address. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), including information provided orally, that is likely to be confidential given the nature of the information and the circumstances of disclosure. Probely, Lda.’s Confidential Information includes the Services and Confidential Information of each party, includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that
- is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
- was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
- is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care)
- not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and
- except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Personal Data. You and us undertake to comply with the applicable personal data policy accessible at Probely’s website - https://probely.com.
GOVERNING LAW AND DISPUTE RESOLUTION
The laws of Portugal govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. You and we irrevocably consent to the exclusive jurisdiction and venue of the courts located in Lisbon, Portugal for all disputes arising out of or relating to these Terms.
- These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect.
- This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
- We may assign, transfer, or otherwise dispose of our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
- The non-exercise, or late or partial exercise, of any right which we have under these Terms cannot under any circumstance imply the waiver of such a right, or the expiry of the same and, therefore, any such right will remain valid and effective despite not being exercised.
“Probely” is a trademark registered by us. The use of our trademark without our approval is completely prohibited.