Conditions/License Agreement for end users of GUARDEY B.V
Conditions/License Agreement for end users of GUARDEY B.V., with its registered office and principal place of business in (2288 EH) Rijswijk, The Netherlands at Treubstraat 31, registered in the trade register of the Chamber of Commerce under number 76634876 (Guardey).
Version August 07, 2024.
2.1 These Terms apply to all legal relationships, including but not limited to any quotation, assignment, trial period, and Agreement, between Guardey and the Customer, including associated upgrades, patches, and updates, as well as related services.
2.2 Deviations from and changes to these Terms only apply if they have been expressly accepted by Guardey in writing.
2.3 The applicability of any deviating general delivery or purchase conditions of the Customer is excluded.
2.4 If at any time one or more provisions in these Terms are wholly or partially invalid or annulled, the other provisions will remain fully applicable. In that case, new provisions will replace the void or annulled provisions, taking into account the purpose and intent of the original provisions as much as possible.
2.5 If Guardey does not always require strict compliance with these Terms, this does not mean that the provisions thereof do not apply, or that Guardey would lose the right to demand strict compliance with the provisions of these Terms.
2.6 Once these Terms apply to an Agreement with the Customer, the Customer is deemed to implicitly agree to the applicability of these Terms to other Agreements entered into and to be concluded with Guardey, including supplementary agreements and follow-up agreements. Any deviations and changes and/or additions to these Terms agreed in accordance with Article 2.2 only apply to the Agreement for which those deviations, changes and/or additions have been agreed.
3.1 Any offer made by Guardey is without obligation unless otherwise stated in writing. Non-binding offers can also be revoked by Guardey after acceptance by the Customer. However, the Customer is always bound by the acceptance of an offer from Guardey.
3.2 An Agreement is only concluded by written confirmation by Guardey to the Customer, or by Guardey starting the execution of an Agreement.
3.3 Offers, promises, and agreements with Guardey employees are only binding on Guardey if and insofar as they have been confirmed in writing and authorized by Guardey.
4.1 An Agreement is entered into for a definite or indefinite period of time. If the Agreement is entered into for a definite period of time and no specific term is included in the Agreement, the Agreement will default to a term of one (1) year, after which it will be automatically extended for the same duration as originally agreed, unless Guardey and/or the Customer terminate the Agreement in writing, subject to a notice period of two (2) months before the end of the aforementioned period for agreements with a term of one (1) year or longer, and one (1) month for agreements with a term of one (1) month. If the Agreement is entered into for an indefinite period of time, it may be terminated by either party in writing, subject to a notice period of one (1) month.
4.2 Customer can choose another subscription at any time. Both broadening and limiting are possible. No money will be refunded when switching to a more limited (cheaper) subscription.
4.3 The Customer may cancel the Agreement without giving any reason within the trial period. In all other cases, the Customer may terminate the Agreement entered into for a definite period towards the end of the term, subject to a notice period of two (2) months for agreements with a term of one (1) year or longer. Agreements entered into for the duration of one (1) month (continuous monthly subscriptions), can be terminated subject to a notice period of one (1) month, which notice must be received by Guardey on the last day of the month at the latest. If no term is specified in the Agreement, it will be automatically extended for the same duration as originally agreed, subject to the respective notice periods.
4.4 Guardey has the right to terminate the Agreement and/or License at any time with immediate effect for any reason. Termination by Guardey will be effective from a) notice to Customer, b) termination of your account (as applicable), or c) at any time when Guardey decides to no longer provide and/or support the Software. The Agreement, License, and Terms will automatically terminate if you fail to comply with any of the provisions of the Agreement and these Terms. Upon termination for any reason, you must immediately uninstall the Software and destroy all copies of the Software in your possession.
5.1 Phishing Simulations are intended to improve user awareness and training in cybersecurity through simulated phishing attacks.
5.2 The Customer is responsible for correctly setting up the requirements for a phishing campaign in their mail environment(s), including configuring spam filters, whitelists, and other necessary email settings.
5.3 The Customer determines when the phishing simulations will be conducted. Guardey provides support and advice for planning and executing these simulations, but the final scheduling decision lies with the Customer.
5.4 Results of the phishing simulations are shared exclusively with the Customer and are used to improve security awareness training. Guardey ensures that all data is processed in accordance with GDPR and other relevant legislation.
5.5 The Customer agrees not to pre-warn users or give notifications that could undermine the effectiveness of the simulations.
5.6 Guardey is not liable for any direct or indirect damage resulting from the execution of phishing simulations, unless such damage is due to gross negligence or willful misconduct by Guardey. The Customer acknowledges and accepts that the nature of phishing simulations can lead to temporary disruptions in business operations. It is the Customer’s responsibility to ensure that their organization is prepared for potential impacts and to mitigate any adverse effects through proper planning and internal communication.
6.1 The Customer is responsible for correctly setting up and configuring the Software and Services, including any necessary adjustments in their mail environments to ensure the successful execution of phishing simulations.
6.2 The Customer must ensure that their use of the Software and Services complies with all applicable laws, regulations, and internal policies.
6.3 The Customer must provide accurate and up-to-date information to Guardey as necessary for the provision of the Services. Guardey is not liable for any issues arising from inaccurate or outdated information provided by the Customer.
6.4 The Customer is responsible for managing user access and permissions within their organization. This includes ensuring that only authorized personnel have access to the Software and Services.
6.5 The Customer must implement and maintain appropriate security measures to protect their systems, data, and access to the Software and Services. Guardey is not liable for any breaches or incidents resulting from inadequate security measures on the part of the Customer.
6.6 The Customer must promptly communicate any issues, incidents, or support requests to Guardey. Timely communication is essential for the effective resolution of any problems and the continued provision of Services.
7.1 Guardey will charge a fee for the use of the Software/Services according to the Agreement and/or rates published on Guardey’s website or provided in a formal quotation.
7.2 All rates stated on the website or in quotations are exclusive of VAT and any other government levies or taxes.
7.3 Collection of the payment will take place via the payment method included in the Agreement or as specified on the invoice.
7.4 For annual contracts, billing and payment occur in advance per year for the specified number of users. Thereafter, additional users added during the year will be billed monthly on a pro-rata basis at the license price, including any applicable discounts.
7.5 Guardey will send the Customer an invoice, which can be paid using digital payment options such as iDeal and Credit Card, or via bank transfer. It is the Customer’s responsibility to ensure timely payment.
7.6 The payment obligation begins upon written acceptance of the quotation. Licenses are invoiced in advance for the full term. Activation of the licenses occurs once the Customer adds users to the Guardey platform. If the Customer has not added any users within two (2) months of accepting the quotation, the license will automatically be activated on the first day of the third month, regardless of actual usage.
7.7 If payment is not received by the due date, the Customer is in default without further notice of default being required. Guardey will send the Customer a payment reminder, giving the Customer the opportunity to pay within 14 days.
7.8 From the day the Customer is in default, the Customer will owe a monthly interest of 2% on the total amount owed to Guardey. The collection costs and the interest owed for previous months are added to the amount owed (interest on interest) until the day of full payment, with any partial month being considered a full month.
7.9 All collection costs (both judicial and extrajudicial) are for the account of the Customer. The extrajudicial costs amount to at least 15% of the amount to be claimed with a minimum of EUR 2,000.
7.10 The Customer expressly waives their right to set-off. The Customer also expressly waives the right to suspend its payment obligations.
7.11 If at any time Guardey has doubts about the creditworthiness of the Customer, Guardey has the right to demand certain guarantees, such as a deposit or bank guarantee.
7.12 Objections to the amount of the invoice must be made known by the Customer within 30 days. After this term, the Customer is deemed to have agreed to the amount of the invoice.
8.1 Guardey (or its licensors) grants the Customer a non-exclusive, non-transferable, non-commercial and personal license, without the right to sublicense (hereinafter referred to as: License) to use the Software (in whole or in part) during the time until the Agreement has come to an end. Under no circumstances may the Customer allow others to use the Software or this License for commercial purposes without obtaining a license to do so from Guardey.
8.2 The Customer may only use the Software within its own organization, but never in such a way that this use leads or can lead to any form of – commercial or non-commercial – exploitation of the Software or any part thereof by the Customer or any third party.
8.3 The Customer may not, directly or indirectly: i) commercially sell, rent, lease, license, distribute, trade or exploit any part of the Software; ii) reverse engineer the Software in whole or in part, decompile, disassemble, modify, reproduce or create derivative works thereof; iii) create, use and/or distribute “auto”, “trainer”, “script” or “macro” computer programs or any other “cheat” or “hack” programs or software applications for the Software; iv) remove, alter, reverse or circumvent any indications of copyright or trademark or other authorship and original information, notices or labels on or within the Software; and v) subject the Software or any copy or modification thereof to export or re-export in violation of any applicable laws and regulations.
8.4 The License is granted for the duration and under the conditions stipulated in the Agreement and/or in these Terms.
8.5 When using the Software, the Customer will comply with all applicable laws, rules and regulations.
9.1 Any title, all proprietary rights, and intellectual property rights in and to the Software (including, without limitation, any text, source code, graphics, music or sound, any messages or information, names, themes, objects, effects, slogans, diagrams, concept videos, audiovisual effects, domain names, and all other elements contained in the Software, individually or in combination) and all copies thereof are the property of Guardey or its licensors. The Software is protected by national and international laws, copyright treaties, conventions, and other laws. The Software may contain certain licensed materials and Guardey’s licensors may, in such event, protect their rights in the event of any violation of these Terms. Any reproduction or representation of these licensed materials by any means and for any reason is prohibited without the prior consent of Guardey and, if applicable, that of Guardey’s licensors and agents. Except as expressly set forth in these Terms, all rights not granted to the Customer under this Agreement are expressly reserved by Guardey.
9.2 The License does not confer any title or ownership to the Software and shall not be construed as a sale of any rights to the Software. The Customer acknowledges and agrees that the Software and any copies that the Customer is authorized to make are the intellectual property of Guardey and its licensors.
9.3 The Customer may not modify, adapt, translate, or create derivative works based on the Software. Any modifications or enhancements to the Software shall remain the property of Guardey or its licensors.
9.4 Guardey’s trademarks, logos, and service marks (collectively, “Trademarks”) displayed in the Software are the property of Guardey. The Customer is not permitted to use these Trademarks without the prior written consent of Guardey.
9.5 The Customer agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Software.
9.6 If the Customer becomes aware of any actual or threatened infringement of the intellectual property rights in the Software, or any unauthorized use of the Software, the Customer agrees to promptly notify Guardey in writing. Guardey reserves the right to take any legal action it deems necessary to protect its intellectual property rights.
10.1 The Customer acknowledges and accepts that all obligations to which Guardey is bound must be expressly stated in the Agreement. Guardey’s liability is excluded except in cases of fraud or gross negligence, to the extent that such exclusion is not prohibited by applicable law.
10.2 In cases where Guardey is liable, despite the exclusions stated in 10.1, Guardey’s total liability for attributable failures in the performance of the Agreement, the Services provided, or on any other legal ground whatsoever, is limited to direct damages up to the amount paid by the Customer for the Agreement in the twelve (12) months preceding the incident, with a maximum of €10,000.
10.3 Guardey is not liable for indirect damages, including but not limited to consequential damages, loss of profit, lost savings, reduced goodwill, business interruption, or damage as a result of claims from the Customer’s clients.
10.4 Guardey’s liability only arises if the Customer provides Guardey with immediate and proper notice of default in writing, detailing the shortcoming and allowing Guardey a reasonable term to remedy the issue. Any claim for damages must be submitted in writing within thirty (30) days after the damage occurred.
10.5 The Customer indemnifies Guardey against all third-party claims arising from a defect in the Software, Services, or systems provided by Guardey that have been passed on to third parties by the Customer.
10.6 Guardey is not liable for damage caused by third-party products or services, delays in the provision of Software or Services, or damage caused by subcontractors.
11.1 Guardey reserves the right, in its sole discretion, to revise, update, change, modify, add, or remove any terms contained in these Terms (and any Appendices) for security reasons, best practices, and for legal or regulatory reasons. These changes will be effective with or without notice to the Customer.
11.2 The Customer can review the most current version of these Terms by clicking the “Terms” link at [https://www.guardey.com/terms-and-conditions/]. The Customer is responsible for periodically checking these Terms for changes.
11.3 If any future changes to these Terms are unacceptable to the Customer or cause the Customer to no longer agree or comply with these Terms, the Customer may terminate the Agreement in accordance with Section 4 of these Terms and immediately uninstall the Software and destroy all copies of the Software. The continued use of the Software after any revision of these Terms constitutes the Customer’s full and irrevocable acceptance of all such changes.
11.4 Notify the Customer, if Customer is signed up. If Customer elects to be notified in writing 14 days prior to Guardey engaging an adjustment of the Terms and Conditions, Customer must subscribe to such notifications via this https://www.guardey.com/notify-for-changes-terms-and-conditions/
12.1 Guardey may change the Software at any time and in its sole discretion, for any reason or without any specific reason, particularly for technical reasons such as updates, maintenance, and/or resets in order to improve and/or optimize the Software.
12.2 The Customer acknowledges that Guardey will perform all maintenance and updates for the Software. Updates of the Software will take place outside office hours (09:00-17:00 UTC+1).
12.3 For specific terms regarding the VPN native desktop applications, including updates and maintenance, please refer to Appendix A.
13.1 Helpdesk Availability
The Guardey helpdesk is available 7 days a week between 08:00 and 22:00. Support can be reached via email at [email protected].
13.2 Priority Classification and Response Times
Support requests will be handled based on the following priority classification matrix:
| Classification | Description | Response Time | Target Resolution Time |
| #1 | Software cannot be used; critical impact on production; requires immediate resolution. | < 4 hours | < 4 hours |
| #2 | Software is operational but with limitations. | < 1 business day | < 2 business days |
| #3 | Requests for modifications to the software. | < 3 business days | Not applicable |
13.3 Support Request Submission
Support requests should be submitted between 08:00 and 22:00. Response times and target resolution times apply based on the classification of the issue as defined above.
13.4 Uptime Commitment
Guardey commits to a minimum uptime of 96.7% per calendar month. If the uptime falls below this percentage, the Customer will be eligible for a free extra month of Guardey Services (“Service Credit”). Uptime is calculated by subtracting from 100% the percentage of minutes during the calendar month in which the Services were unavailable. The latest uptime statistics can be found at [https://status.guardey.com/].
13.5 SLA Exclusions
The uptime commitment does not apply to unavailability caused by: (i) Factors outside of Guardey’s reasonable control, including force majeure events, Internet access, or problems beyond Guardey’s network; (ii) Actions or inactions of the Customer or any third party; (iii) Customer’s or third-party equipment, software, or other technology (excluding third-party equipment within Guardey’s control); (iv) Maintenance, provided the Customer is informed at least three (3) days in advance; (v) Legal, regulatory, or authoritative orders, instructions, or recommendations.
13.6 Claim and Sole Remedy
The Customer should submit any claims regarding uptime percentage via email at [email protected]. The Customer’s sole and exclusive remedy for any unavailability, non-performance, or other failures by Guardey to provide the Services is the receipt of the Service Credit (if eligible) as outlined in this SLA.
14.1 If and insofar as personal data for or originating from the Customer are processed in the context of the execution of the Agreement, Guardey will handle this personal data in a proper and careful manner and in accordance with the GDPR.
14.2 For more information about how Guardey handles personal data, Guardey refers the Customer to its Privacy Statement at [https://www.guardey.com/privacy-statement/].
14.3 Guardey ensures compliance with relevant data protection laws and regulations to safeguard the privacy and security of personal data.
15.1 Force majeure means circumstances that impede the performance of Guardey’s obligations under these Terms and the Agreement to which they apply, over which Guardey has no reasonable control. This includes, but is not limited to, late and/or delayed deliveries, incomplete deliveries by Guardey, and temporary or partial unavailability of Software, Customer accounts, or Services caused by circumstances beyond Guardey’s reasonable control.
15.2 In the event of force majeure, all Guardey’s obligations will be suspended. Guardey will not be liable for any damages resulting from the suspension of obligations due to force majeure.
15.3 Should the period during which Guardey is unable to fulfill its obligations due to force majeure exceed ninety (90) calendar days, either party shall have the right to terminate the Agreement in writing. Guardey shall have the right to terminate the Agreement for the Software and Services without any obligation to pay any compensation whatsoever arising out of or in connection with such termination.
16.1 If any provision of these Terms or the Agreement is determined by any competent court to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of the Agreement or these Terms which are valid, binding, and enforceable.
16.2 The invalid or unenforceable provisions shall be construed in a manner that most closely reflects the validity and enforceability of the parties’ intentions as set forth in the Agreement and these Terms.
17.1 No failure or delay by Guardey (or its licensors) to exercise any right or remedy as provided under these Terms or by law shall constitute a waiver of that or any other right or remedy.
17.2 The further exercise of any right or remedy shall not be precluded or limited by any prior exercise or partial exercise of the same right or remedy.
17.3 A waiver of any right or remedy may only be made upon a written statement to that effect signed by Guardey.
18.1 This Agreement and any agreements entered into pursuant to or in connection with this Agreement shall be governed by and construed in accordance with Dutch law.
19.1 All disputes in connection with this Agreement or the agreements concluded in implementation of or in connection with this Agreement will be submitted exclusively to the competent court of the District Court of The Hague.
19.2 Before resorting to litigation, the parties shall endeavor to resolve any dispute amicably through negotiation and mutual agreement. If such efforts fail, either party may seek resolution through the court as specified in 19.1.
Appendix A: Additional Terms for VPN Native Desktop Applications
Guardey may change the VPN native desktop applications at any time and in its sole discretion, for any reason or without any specific reason, particularly for technical reasons such as updates, maintenance, and/or resets in order to improve and/or optimize the applications. The Customer accepts that the changes can be installed or downloaded automatically.
The Customer acknowledges that Guardey may discontinue support for previous versions of the VPN native desktop applications upon the availability of an updated version. Guardey’s resellers, channel partners, and affiliated service providers have no obligation to provide any maintenance or customer support related to the VPN native desktop applications.
Guardey makes no guarantees on bandwidth. In addition, there may be “Traffic Shaping” when using the Software. Traffic shaping (also referred to as packet shaping) is a bandwidth management technique in which the (data) flow of certain types of network packets is slowed down to ensure network performance for higher priority applications (the Software).
4.1 If the Customer has expressly agreed with Guardey in writing that, in addition to the Software, it will also purchase the “Site-to-Site VPN” application, the provisions of this Article 4 shall apply.
4.2 It is at Guardey’s sole discretion to determine whether the Customer (and their hardware) is eligible for the Site-to-Site VPN application.
4.3 Customers of the Site-to-Site VPN receive a Dedicated IP address per site. A Site-to-Site VPN does this by establishing an encrypted connection between VPN gateways located at each of these sites. A Site-to-Site VPN tunnel encrypts the traffic on one side and sends it to the other site over the public internet, where it is decrypted and forwarded to the destination.
5.1 If the Customer has expressly agreed with Guardey in writing that, in addition to the Software, it will also purchase the “Dedicated IP address” application, the provisions of this Article 5 shall apply.
5.2 Customers of the Dedicated IP address application will receive a Dedicated IP address on the terms and conditions as agreed in writing. A Dedicated IP address is an address that only the Customer can use via a Virtual Private Network (VPN). All persons assigned to this IP address will have secure access to the network – anywhere in the world. There is a maximum of one hundred (100) users per Dedicated IP address.
5.3 The Customer is fully responsible for the use of the Dedicated IP addresses in line with applicable laws and regulations. If a Dedicated IP address assigned by Guardey to the Customer is blacklisted, in connection with its misuse, the Customer will be liable to Guardey without a reminder or other prior statement, a non-settable fine of €500 (in words: five hundred euros) due.
