Arcode® Corporation

 

SUBSCRIBER AGREEMENT

 

 

 

This Subscriber Agreement (“Agreement”) is a legally binding contract between you and, if applicable, another entity on behalf of which you are acting (collectively, “You” or “Your”) and Arcode® Corporation (“Arcode” “We,” or “Our”) regarding Your and Our rights and duties relating to Your acquisition and use of TLS digital certificates issued by Arcode®. If you are acting on behalf of another entity, You represent that you have the authority to bind such entity to this Agreement.

 

1. Definitions and Terms

 

“Inky® Mail Client Software” — A software application that uses the Inky® Mail protocol to request, accept, use or manage Inky® Certificates.

 

“Certificate” — A computer-based record or electronic message issued by an entity that associates a “Public Key” with an email address or other technical identifiers and is Digitally Signed by the issuing entity.

 

“CRL” — A database or other list of Certificates that have been revoked prior to the expiration of their Validity Period.

 

“Digital Signature/Digitally Sign” — The transformation of an electronic record by one person, using a Private Key and Public Key Cryptography, so that another person having the transformed record and the corresponding Public Key can accurately determine (i) whether the transformation was created using the Private Key that corresponds to the Public Key, and (ii) whether the record has been altered since the transformation was made. A Digital Signature need not incorporate a handwritten signature.

 

“Key Pair” — Two mathematically-related keys (a Private Key and its corresponding Public Key), having the properties that (i) one key can be used to encrypt a message (i.e., create a Digital Signature) that can only be decrypted using the other key (i.e., verify the Digital Signature), and (ii) even while knowing or possessing one key (e.g., the Public Key), it is computationally difficult or infeasible to discover the other key (e.g., the Private Key).

 

“Inky® Certificate”— A Certificate issued by Arcode® under the Inky® name.

 

“Private Key” — A key kept secret by its holder and which is used in Public Key Cryptography to create Digital Signatures and to decrypt messages or files that were encrypted with the corresponding Public Key.

 

“Public Key” — In Public Key Cryptography, this is the publicly-disclosed key that is used by the recipient to (i) validate Digital Signatures created with the corresponding Private Key and (ii) encrypt messages or files to be decrypted with the corresponding Private Key.

 

“Public Key Cryptography” — A type of cryptography that uses a Key Pair to securely encrypt and decrypt messages. One key encrypts a message, and the other key decrypts the message. One key is kept secret (the Private Key), and one is made available to others (the Public Key). These keys are, in essence, large mathematically-related numbers that form a unique pair. Either key may be used to encrypt a message, but only the other corresponding key may be used to decrypt the message.

 

“Repository” — An online system maintained by Arcode® for storing and retrieving Inky® Certificates and other information relevant to Inky® Certificates, including information relating validity or revocation.

 

“Validity Period” — The intended term of validity of a Certificate, beginning with the date of issuance (“Valid From” or “Activation” date), and ending on the expiration date indicated in such Certificate (“Valid To” or “Expiry” date).

 

2. Effective Date, Term, and Survival

 

2.1 Effective Date of Agreement

 

This Agreement is effective once You request that Arcode® issue an Inky®® Certificate to You.

 

2.2 Term

 

Each of Your Certificates will be valid for the Validity Period indicated in such Certificate unless revoked earlier. This Agreement will remain in force during the entire period during which any of Your Certificates are valid, continuously so as to include any renewal periods (including automatic renewals). Once You no longer possess any valid Inky® Certificate, this Agreement will terminate.

 

2.3 Survival

 

Sections in this Agreement concerning privacy, indemnification, disclaimer of warranties, limitations of liability, governing law, choice of forum, limitations on claims against Arcode®, and prohibitions on the use of fraudulently-obtained Certificates and expired Certificates shall survive any termination or expiration of this Agreement.

 

3. Your Warranties and Responsibilities

 

3.1 Warranties

 

By requesting, accepting, or using an Inky® Certificate:

 

You warrant to Arcode® and the public-at-large that You are the legitimate owner of the email account that is, or is going to be, the subject of Your Certificate, or that You are the duly authorized agent of the owner of the email account.

 

You warrant that You will not use Your Certificates to attack, defraud or intercept the traffic of others.

 

3.2 Changes in Certificate Information

 

If at any time You no longer control the email address associated with any of Your Certificates, or if any of the warranties in Section 3.1 above are no longer true with respect to any of Your Certificates in any other way, You will immediately request that Arcode® revoke the affected Certificates by removing that email account from your Inky® Mail Client, or by deleting your Inky® account. You may request replacement Inky® Certificates by adding the email account to your Inky® Mail account, provided that the warranties in Section 3.1 above are true with respect to the replacement Certificates.  In the event that you revoke your Inky® Certificate, emails which you have received which were encrypted using that certificate will no longer be readable.

 

3.3 Certificate Issuance

 

The contents of Your Certificates will be based on the information You or Your Inky® Mail Client Software sends to Arcode®.

 

If Arcode® accepts your request for a Inky® Certificate, Arcode® will create Your Certificate and it will be provided to You via the Inky® Mail client. If Arcode® is unable to confirm your authorization or legitimate use and ownership of the email address you provided, Your request may be denied.

 

Arcode® may, in its sole discretion, refuse to grant Your request for an Inky® Certificate, including for any lawful reason stated or not stated in this Agreement.

 

3.4 Key Pair Generation

 

Your Key Pair (Public and Private Keys) will be generated by You or Your Inky® Mail Client Software on Your device(s). The Inky® Email software will submit the corresponding Public Key to Arcode® and it will be incorporated into Your Certificate. Arcode® will store Your Certificate in its Repository. Arcode® will not have access to Your Private Key.

 

We will use technical methods and protocols to verify that You have legitimate control over the subject email address. This verification is done solely to assist Arcode® in determining whether to issue an Inky® Certificate and is not a service being performed for Your benefit or on Your behalf.

 

3.5 Inspection and Acceptance of Certificates

 

You agree to immediately inspect the contents of Your Certificate (“Initial Inspection”), and to immediately request revocation if you become aware of any inaccuracies, errors, defects, or other problems (collectively, “Certificate Problems”) with Your Certificate. Your Inky® Mail Client Software may perform this task for You. You agree that You will have accepted Your Certificate when You first use Your Certificate or the corresponding Private Key after obtaining Your Certificate, or if You fail to request revocation of Your Certificate immediately following Initial Inspection or use.  The act of sending signed or encrypted email using the Inky® Mail client, or decrypting email that you have receive, signifies acceptance of the Inky® Certificates.

 

3.6 Use of Your Certificate

 

The purpose of Your Certificate is to encrypt, decrypt, or sign Internet communications. Arcode® is not responsible for any legal or other consequences resulting from or associated with the use of Your Certificate. You agree that You will not use Your Certificate for any purpose requiring fail-safe performance, such as the operation of public utilities or power facilities, air traffic control or navigation systems, weapons systems, or any other systems, the failure of which would reasonably be expected to lead to bodily injury, death or property damage.

 

3.7 When to Revoke Your Certificate

 

You must immediately request that Your Certificate be revoked if: (i) You suspect or discover that Your Private Key has been, or is in danger of being, lost, stolen, otherwise compromised, or subjected to unauthorized use, or (ii) any information in Your Certificate is no longer accurate, current or complete, or any such information becomes misleading. You may make a revocation request to Arcode® using Inky® Mail Client Software by deleting your Inky® Mail account. You should also notify anyone who may have relied upon Your use of Your Certificate that Your encrypted communications may have been subject to compromise.

 

3.8 When to Cease Using Your Certificate

 

You must immediately cease using Your Certificate if: (i) You suspect or discover that the Private Key corresponding to Your Certificate has been or may be stolen, lost, or otherwise compromised or subjected to unauthorized use, (ii) any information in Your Certificate is no longer accurate, current or complete, or any such information becomes misleading, or (iii) upon the revocation or expiration of Your Certificate.

 

 

3.9 Indemnification

 

You agree to indemnify and hold harmless Arcode® and its directors, officers, employees, agents, and affiliates from any and all liabilities, claims, demands, damages, losses, costs, and expenses, including attorneys’ fees, arising out of or related to: (i) any misrepresentation or omission of material fact by You to Arcode®, irrespective of whether such misrepresentation or omission was intentional, (ii) your violation of this Agreement, (iii) any compromise or unauthorized use of Your Certificate or corresponding Private Key, or (iv) Your misuse of Your Certificate. If applicable law prohibits a party from providing indemnification for another party’s negligence or acts, such restriction, or any other restriction required by law for this indemnification provision to be enforceable, shall be deemed to be part of this indemnification provision.

 

4. Arcode’s Rights and Responsibilities

 

4.1 Privacy

 

Because others may rely on your use of Your Certificate to encrypt Internet communications, the email address You send to Arcode® will be published by Arcode® and will become accessible by others via the Inky® Mail client.  Arcode® may additionally disclose your email address if compelled to do so by court order or other compulsory legal process. If legally permissible and to the extent possible and within Arcode’s control, and if you have provided Arcode® with an email address, Arcode® will send an email to such address notifying You of the potential disclosure. Arcode® may also disclose your email address if Arcode® believes disclosure is necessary to prevent loss of life, personal injury, damage to property, or significant financial harm.

 

4.2 Certificate Repository

 

During the term of the Agreement, Arcode® will operate and maintain a secure online Repository that is available to authorized relying parties that contains: (i) all past and current Inky® Certificates (including, as applicable, Your Certificate) and (ii) a CRL or similar online database indicating whether Inky® Certificates are valid, suspended, and/or revoked. Arcode® will publish Your Certificate in the Repository and will indicate whether it is valid, suspended, revoked, and/or expired. Arcode® will allow the public to access this information via the Inky® Mail client.

 

4.3 Suspension and Revocation

 

Arcode® may immediately suspend Your Certificate if any party notifies Arcode® that Your Certificate is invalid or has been compromised. Arcode® will determine, in its sole discretion, whether to revoke Your Certificate or restore it to valid status. If You or Your agent requests that Your Certificate be revoked, Arcode® will revoke Your Certificate and update the Repository as soon as practical.

 

 

Arcode® may also, without advance notice, revoke Your Certificate if Arcode® determines, in its sole discretion, that: (i) Your Certificate was not properly issued or was obtained through misrepresentation, concealment, or fraud; (ii) Your Certificate has become, or appears to have become, unreliable; (iii) the security of the Private Key corresponding to Your Certificate has been or may be stolen, lost, or otherwise compromised, or subject to unauthorized use; (iv) any information in Your registration with Arcode® or Your request for a Inky® Certificate has changed or has become false or misleading; (v) You have violated any applicable law, agreement or other obligation; (vi) You request revocation; (vii) Arcode® is legally required to revoke Your Certificate pursuant to a valid court order issued by a court of competent jurisdiction; (viii) this Agreement has terminated; or (iv) there are other reasonable and lawful grounds for revocation. Arcode® will provide notice of revocation via email to the email address of record.

 

4.4 IMPORTANT DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

 

INKY CERTIFICATES AND SERVICES ARE PROVIDED “AS-IS.”

 

ARCODE DISCLAIMS ANY AND ALL WARRANTIES OF ANY TYPE, WHETHER EXPRESS OR IMPLIED, INCLUDING AND WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH ANY ARCODE SERVICE OR INKY CERTIFICATE.

 

ARCODE DOES NOT ACCEPT ANY LIABILITY FOR ANY LOSS, HARM, CLAIM, OR ATTORNEY’S FEES IN CONNECTION WITH SUCH CERTIFICATES. ACCORDINGLY, YOU AGREE THAT ARCODE WILL NOT BE LIABLE FOR ANY DAMAGES, ATTORNEY’S FEES, OR RECOVERY, REGARDLESS OF WHETHER SUCH DAMAGES ARE DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR COMPENSATORY, EVEN IF ARCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY APPLIES IRRESPECTIVE OF THE THEORY OF LIABILITY, I.E., WHETHER THE THEORY OF LIABILITY IS BASED UPON CONTRACT, WARRANTY, INDEMNIFICATION, CONTRIBUTION, TORT, EQUITY, STATUTE OR REGULATION, COMMON LAW, OR ANY OTHER SOURCE OF LAW, STANDARD OF CARE, CATEGORY OF CLAIM, NOTION OF FAULT OR RESPONSIBILITY, OR THEORY OF RECOVERY. THE PARTIES AGREE THAT THIS DISCLAIMER IS INTENDED TO BE CONSTRUED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

 

BY WAY OF FURTHER EXPLANATION REGARDING THE SCOPE OF THE DISCLAIMER, AND WITHOUT WAIVING OR LIMITING THE FOREGOING IN ANY WAY, ARCODE DOES NOT MAKE, AND ARCODE EXPRESSLY DISCLAIMS, ANY WARRANTY REGARDING ITS RIGHT TO USE ANY TECHNOLOGY, INVENTION, TECHNICAL DESIGN, PROCESS, OR BUSINESS METHOD USED IN EITHER ISSUING INKY CERTIFICATES OR PROVIDING ANY OF ARCODE’S SERVICES. YOU AFFIRMATIVELY AND EXPRESSLY WAIVE THE RIGHT TO HOLD ARCODE RESPONSIBLE IN ANY WAY, OR SEEK INDEMNIFICATION AGAINST ARCODE, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING PATENT, TRADEMARK, TRADE SECRET, OR COPYRIGHT.

 

5. Additional Terms

 

5.1 Governing Law

 

This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to principles of conflict of law.  Any claim hereunder shall be brought in any court of competent jurisdiction in the State of Maryland.  The parties hereby consent and agree that the jurisdiction and venue of the State and Federal courts within the State of Maryland, County of Montgomery, shall be the exclusive jurisdiction and venue for any claim or cause of action arising under this Agreement, and the parties expressly waive any and all rights they may have or which may thereafter arise to contest the propriety of jurisdiction and venue.  The parties hereby consent to the personal jurisdiction of such courts and waive any argument that venue in any such forum is not convenient.

 

5.2 Limitation on Claims against Arcode®

 

Any claim, suit or proceeding against Arcode® arising out of this Agreement must be commenced within one year of any alleged harm, loss, or wrongful act having occurred.

 

5.3 Third-Party Beneficiary

 

This Agreement does not create rights in favor of any third parties. Furthermore, it is the express intent of the parties that this Agreement shall not be construed to confer any rights on any third party.

 

5.4 Entire Agreement

 

This Agreement, together with any documents incorporated by reference in any of the foregoing, constitutes the entire Agreement between You and Arcode® concerning the subject matter hereof.

 

5.5 Amendment

 

Arcode® may modify this Agreement from time to time. Each modified version of this Agreement will be posted to Arcode’s Inky® website (inky.com) at least three (3) days before it becomes effective. If such new version contains material changes and You have provided Arcode® with an email address, Arcode® will send an email to such address notifying You of such new version at least three (3) days before it becomes effective.

 

5.6 Severability

 

If any provision of this Agreement is found to be invalid, unenforceable, or contrary to law, then the Agreement will be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent or, if that is not possible, by striking the provision and enforcing the remainder of this Agreement.

 

5.7 Authorization of Arcode® to Send Emails

 

By requesting, accepting or using a Inky® Certificate, You authorize Arcode® to send You emails relating to the renewal or revocation of Your Certificates, or to Your request, acceptance, or use of Inky® Certificates, as well as notices regarding changes to this agreement.

 

Arcode® may send You such emails using any email address You provide to Arcode®.

 

Last Revised: June 16, 2016