Terms And Conditions of Use

1. Introduction

This End User License Agreement (hereafter referred to as the “EULA”) constitutes a legally binding and enforceable agreement between you, either individually or on behalf of your employer or any other entity which you represent (hereafter referred to as the “Customer,” “User” or “You”), and K Five Four, LLC, a Delaware limited liability company (hereafter referred to as “k>fivefour”) (each separately a “Party,” and together the “Parties”) and outlines the terms of use and conditions with which the User may access the Program and Services offered by k>fivefour.

2. Authority and Capacity

You acknowledge and agree that, by clicking on an “i accept” or other similarly labeled button or checkbox, which reasonably indicates acceptance of these terms, or by downloading, installing or using the k>fivefour program and services, you are representing that (1) you have read, understand and agree to be bound by the terms of this end user license agreement; (2) you have the authority to enter into this agreement personally or on behalf of the organization named as the customer, and to bind such customer to this agreement; and (3) you agree to receive, without further notice or prompting, updated versions of the program and services. If you do not agree to these terms, you may not access or use the k>fivefour program and services.

3. Compliance With Law and Other Agreements

None of the terms and conditions contained in this EULA are intended to contravene or invalidate federal or state laws. In the event that You are accessing this program or service pursuant to a separate agreement between your employer and k>fivefour (the “Purchase Agreement”), the terms and conditions of the Purchase Agreement remain in full force and effect. You are not a party to the Purchase Agreement, nor a third-party beneficiary thereof.

4. Definitions

4(a). Authorized User

“Authorized User” or “End User” means any individual or User who has agreed to the terms of this EULA or who accesses the Course Materials, Program(s), or Services in accordance with the terms of this EULA during the Term.

4(b). Battlegrounds or Program

“Battlegrounds” or “Program” means the platform owned and designed by k>fivefour providing the electronic training environment which consists of controlled access, software and services.

4(c). Services

“Services” means, individually or collectively as the context requires, the training course(s), instruction, and/or Course Materials offered through k>fivefour’s Battleground proprietary application, including any updates thereto, for which the Authorized User has rights to access and use pursuant to the EULA.  k>fivefour may update the Services at any time in its sole discretion.

4(d). Confidential Information

“Confidential Information” has the meaning assigned to it in Section 17 of this EULA.

4(e). Course Materials

“Course Materials” mean, collectively or individually as the context requires, any documents, lectures, presentations, instruction(s), lesson plans, course and training structure(s), programs, diagrams, software, video or audio recordings, or any other materials that are used as part of the Services. Such materials may not be shared orally, visually, in writing, or through practical demonstrations.

4(f). Customer

“Customer” means any entity or organization that has entered into a Purchase Agreement with k>fivefour.

4(g). Intellectual Property Rights

“Intellectual Property Rights” means all patents, rights to inventions, copyrights and related rights, trademarks, service marks, business names, domain names, rights in designs, database rights, rights to use and protect confidential information (including knowhow), and all other intellectual property rights, in each case whether registered or unregistered and whether registrable or not, and including all applications and rights to apply for and be granted renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future, nationally or internationally.

4(h). Know-How

“Know-How” means any information learned or acquired during the course of instruction and Permitted Use of the Program and Services.

4(i). Purchase Agreement

“Purchase Agreement” means a valid, binding and enforceable written agreement, between k>fivefour and a Customer, pursuant to which the Customer has certain rights and duties with respect to its employees, independent contractors, or other agents’ access and/or use of the Program and Services, as the same may be amended, renewed or extended from time to time.

4(j). Output

“Output” means all recorded information, regardless of the form or method of recording, made available, reported, downloaded or otherwise compiled or generated from the Program or Services.

4(k). Permitted Use(s)

“Permitted Use(s)” means an Authorized User’s approved use of the Program and Services as described in this EULA.  Permitted Uses shall include accessing the Program, Services, and Course Materials for the purposes of gathering Know-How and building expertise in security assessments, vulnerability discovery, penetration testing and adversarial tactics, techniques, and procedures as intended by k>fivefour’s course design.

4(l). Term

“Term” means the entire duration of User’s Permitted Use of the Program, Services, and/or Course Materials, except that the “Term” shall automatically terminate (without any required action by, or advance notice from, k>fivefour) upon either (i) any misuse or unauthorized access of the Program or Course Materials or Services, as reasonably determined by k>fivefour; or (ii) any action by User taken in violation or in breach of this EULA.

4(m). Territory

“Territory” means any and all location(s), virtual or physically in person, where You participate in the Program and/or receive the Services.

4(n). User Data

“User Data” means recorded information (including personal information), regardless of the form or method of recording, which is (i) owned or controlled by You, (ii) stored or maintained on one or more file servers or other storage devices owned or controlled by k>fivefour and (iii) read into memory, accessed, used or manipulated in connection with Your use of the Program and Services.

4(o). Fortra

“Fortra” means the entity legally registered as Fortra LLC. Fortra LLC is a limited liability company registered under the laws of Delaware, USA. Fortra LLC is the owner of Cobalt Strike (“Third Party Software”), which is included in some k>fivefour Services and requires notices and/or additional terms and conditions. Required Third Party Software notices and additional terms and conditions are located at https://www.cobaltstrike.com/license (or a successor website thereto) and are made a part of and incorporated by reference into this EULA. User shall comply with license terms and requirements of the third party licensor.

5. Ownership and Rights

All right, title and interest in and to the k>fivefour Program, Course Materials, and Services provided to You, including all Intellectual Property Rights and proprietary rights therein are owned by, and remain the exclusive property of k>fivefour  and are protected by all applicable intellectual property laws of the United States of America and international treaties. Upon your acceptance of this EULA, You are granted certain limited rights for Permitted Use.

6. Grant of License

Subject to the terms and conditions of this EULA and User’s compliance therewith, k>fivefour grants You a limited, non-exclusive, non-sublicensable, non-transferable, right and license to access and use the k>fivefour Program, Course Materials, and Services solely for the Permitted Use during the Term. Upon termination or expiration of this EULA, all rights and licenses granted under this EULA will terminate and Customer and all Authorized Users must cease accessing and using the Program and Services immediately.

7. Prohibited Actions

Violating any of the following constitutes a breach of this EULA. You shall not and shall not authorize any third-party to: (i) copy, attempt to copy, modify, duplicate, reproduce, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the Program, Course Materials, and Services (as applicable) in any form or media or by any means; (ii) market, sell, resell, or otherwise commercially exploit or make the Program, Course Materials, or Services available to any third party; (iii) attempt to decompile, reverse compile, disassemble, reverse engineer, or attempt to derive source code; (iv) distribute access to non-Authorized Users; (v) violate export laws or computer crime statutes, (vi) interfere with or overload the Program or Services; and (vii) Use Know-How to provide a competitive course during the ten (10) year period immediately following termination or expiration of the Term.

8. Account Responsibility

You will receive an account in connection with your Permitted Use of the Program and Services. You are responsible for safeguarding your account credentials. Account sharing or resale is prohibited.

9. Data Security Risk Acknowledgment

Notwithstanding data protection obligations set forth in Section 11, k>fivefour makes no warranty that unauthorized third parties will be unable to access User Data. Although we have security measures in place to protect User Data, we cannot guarantee its security.

10. Intellectual Property Rights

User acknowledges and agrees that k>fivefour owns all Intellectual Property Rights in and to the Program, Course Materials, and Services (including all improvements thereto). Except for limited Permitted Use granted under this EULA, User shall have no rights in or to the Program, Course Materials, or Services.

11. Privacy and Confidentiality of User Data

k>fivefour will maintain administrative, physical, and technical safeguards to protect the security and confidentiality of User Data in accordance with our Privacy Policy (available at https://kfivefour.com/privacy-policy/), which is incorporated herein. Users must comply with applicable privacy laws. If you are acting individually, you are subject to k>fivefour’s Privacy Policy.

12. Disclaimer of Warranties

The Program and Services are provided on an “as is,” “as available,” and “with all faults” basis. k>fivefour expressly disclaims any and all warranties, express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, interoperability, or non-infringement.

12(a). Service Delivery; Best Effort Basis

k>fivefour shall deliver the Program, Course Materials, and Services on a best-effort basis. While k>fivefour endeavors to maintain continuous availability and a high standard of performance, no guarantee, warranty, or representation of uninterrupted or error-free access, uptime, functionality, or delivery schedule is made or implied. k>fivefour reserves the right to suspend, delay, modify, or discontinue any portion of the Services, in whole or in part, for maintenance, upgrades, security events, or factors beyond its reasonable control—including, but not limited to, network outages, power failures, natural disasters, cyber incidents, or third-party provider interruptions. Users acknowledge that such occurrences shall not constitute a breach of this EULA, and no refund, credit, or damages shall be owed by k>fivefour for temporary unavailability or performance degradation of the Services.

13. Limitation of Liability

k>fivefour’s liability to You is limited. k>fivefour’s entire aggregate liability to You, if any, for claims under or related to this EULA will not exceed the total price of the services paid or payable by you in the twelve (12) month period immediately preceding the event giving rise to such claim. k>fivefour shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including but not limited to any loss of profits, revenue, data, goodwill, or use, in connection with the Program and Services, under any legal theory whatsoever (including tort, contract, strict liability, or otherwise), even if k>fivefour has been advised of the possibility of such damages. For the avoidance of doubt, any delay, suspension, or unavailability of the services resulting from events outside k>fivefour’s reasonable control shall not give rise to liability, refund, or damages, and the services are provided strictly on a best-effort basis.

14. Third-Party Websites and External Content Disclaimer

k>fivefour is not responsible for Third Party Websites. The Program, Course Materials, and Services (including any software, data, content or copyrightable subject matter found or accessible by or through the Services) may contain links to internet websites or other electronic resources or content owned, controlled or operated by third parties (“Third Party Websites”).  k>fivefour exercises no control whatsoever over such other Third-Party Websites or the software, data, information, content or other materials found on such Third-Party Websites.  k>fivefour shall not be liable under any circumstance, and bears no responsibility, for any claims, demands, damages or causes of action of any kind or nature related to or arising from your access or use of any Third Party Website or the information, materials or other content displayed on or accessible through such Third Party Website.

15. Right to Modify or Update Terms and Conditions

k>fivefour reserves the right to update, amend, modify or supplement the terms of these terms and conditions at any time and without prior notice.  k>fivefour will maintain an up to date version of the EULA via a hyperlink on the sign in page of the Program.

16. Notices and Electronic Communications

Unless another email address is specified in writing by the Parties, all notices, demands, or consents required or permitted under this Agreement shall be in writing and delivered at the following email addresses:

For k>fivefour Support: support@kfivefour.com

For User: The email address provided to k>fivefour for User’s account registration.

All notices sent by email shall be deemed to have been received at the time of transmission of the email or, if this time is outside business hours (being 09:00 to 17:30 in the place of receipt), when business hours next resume. This section does not apply to the service of any proceedings or other documents in any legal action.

17. Confidentiality and Proprietary Information

In accessing the Services and Program, You will have access to and become acquainted with non-public information of a confidential, proprietary, or secret nature regarding k>fivefour’s business, Customers, and products (“Confidential Information”). Confidential Information includes, without limitation, the details of this EULA and all data, information, technology, proprietary information and trade secrets (including, without limitation, the identity of Customers and prospective Customers), and all information related to the execution of the Services.  You shall assume, for the purposes of this EULA, that any non-public information disclosed hereunder qualifies as Confidential Information, regardless of whether it is marked as such.  You must take at least reasonable measures to prevent the unauthorized disclosure or use of any Confidential Information that is disclosed to You, or otherwise acquired or learned by You, and Confidential Information shall at all times, be and remain the exclusive property of k>fivefour.

17(a). Ownership of Trade Secrets and Proprietary Materials

Any and all such trade secrets, including without limitation any and all Course Materials, files, records, documents, samples, catalogs, drawings, diagrams, specifications, inventions, techniques, processes, presentations, programs, customer lists, price lists, literature, training and course structures and other material supplied by k>fivefour shall remain the sole and exclusive property of k>fivefour. Such a restriction applies regardless of whether such trade secrets are supplied by k>fivefour or received from a third party without the other Party’s knowledge or consent.

17(b). Restriction on Disclosure of Confidential Information

You shall not disclose Confidential Information to any person, firm or corporation, except with k>fivefour’s prior written consent.

17(c). Permitted Disclosures and Exceptions to Confidentiality

The confidentiality obligations hereunder shall not apply to information which: (i) is or becomes generally available to the public other than as a result of a disclosure by You in violation of this EULA; (ii) was within Your possession, without breach of any obligation of confidentiality, prior to it being furnished to You by k>fivefour; (iii) becomes available to You from a source other than k>fivefour, provided that such source is not bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to k>fivefour; (iv) is independently developed by You without use of or reference to k>fivefour’s Confidential Information; or (v) must be disclosed pursuant to any government statute, regulation or any court order, provided that You take reasonable actions to avoid and/or minimize such disclosure, including, if not legally prohibited, providing prompt, advance notice of the impending disclosure to enable k>fivefour to seek a protective order or otherwise prevent such disclosure.  Such actions shall be at a minimum equal to the standard of care You would take to protect Your own information, but no less than reasonable care.

17(d). Reporting and Mitigation of Unauthorized Disclosure or Use

You shall immediately notify k>fivefour, in writing, after You become aware of any unauthorized use, disclosure, or theft of Confidential Information; shall identify your actions to contain and prevent further unauthorized use, disclosure, or theft of the Confidential Information; and shall use reasonable efforts to stop such unauthorized use.

17(e). Return, Destruction, and Certification of Confidential Information

Upon the request of k>fivefour, You shall return any document containing Confidential Information, as well as any copy thereof You might have in your possession or under your control, or destroy same in whatever form or on whatever medium at the request of k>fivefour, and shall attest in writing to such destruction.

17(f). Survival of Obligations Regarding Confidential Information

Your obligations under this Section 17 shall survive the expiration or termination of this EULA and shall continue until such time as k>fivefour’s Confidential Information enters the public domain, other than by reason of a breach of this EULA.

18. Termination, Access Revocation, and Post-Termination Obligations

In the event You breach this EULA, k>fivefour shall have the right, at its sole option, to terminate this EULA or any portion of this EULA, in addition to any other available remedies. Upon the termination of this EULA: (a) your license right to the Program shall cease and You shall no longer be an Authorized User; and (b) You shall: (i) return to k>fivefour all copies of and media relating to the Program, Course Materials, and Services within 10 business days; (ii) delete and erase or otherwise destroy any copies, backup copies, and archival copies of such media copied onto any computer/server pursuant to this EULA; and (iii) certify in writing to k>fivefour within ten (10) business days of the termination of this EULA that all copies have been returned to k>fivefour or have been erased.  You further authorize k>fivefour, in the event of termination of this EULA, to remotely and/or electronically disable, delete and/or remove your ability to access the Program and Course Materials. Termination of this EULA shall not limit either k>fivefour or You from pursuing other remedies available, including injunctive relief, nor shall such termination relieve You from your obligation to pay fees accrued prior to the termination.

19. Additional Important Terms and Conditions Apply

19(a). Assignment and Transfer Restrictions

You shall not sell, assign, sublicense or otherwise transfer, in whole or in part, directly or indirectly, by operation of law, any of your rights or obligations under this EULA without k>fivefour’s prior written consent, which consent may be withheld, delayed or conditioned in k>fivefour’s sole discretion for any reason or for no reason.

19(b). U.S. Export Control, Re-Export, and Trade Compliance Requirements

You acknowledge that the Program and Services are of U.S. origin. As such, You agree to comply with all applicable international and national laws that may apply to the Program, Services, and/or Course Materials, including, without limitation, U. S. Department of State International Traffic In Arms Regulations (Title 22, CFR Parts 120-130), the U.S. Department of Commerce Export Administration Regulations (Title 15, CFR 730-774), and any other U.S. Government regulation applicable to the export, re-export, or disclosure of such controlled technical data (or the products thereof) to Foreign Nationals, whether within, or without, the U.S., including those employed by, or otherwise associated with User or Customer. This duty of compliance under this Section 19(b) shall survive the termination of this EULA. You further agree that you shall not export, re-export, transfer, resell, or otherwise dispose of the Program, Services, Course Materials, or any part thereof in violation of any end-user, end-use and destination restrictions issued by the U.S. and other governments. An “export” under this Section 19 shall have the same meaning as defined under 22 C.F.R. § 120.17.

19(c). Federal Government End Use Provisions

This Section 19(c) applies to You if End User is a U.S. federal government agency or any contractor therefor. We provide the Program and Services for U.S. federal government end use solely in accordance with the following:  The k>fivefour Program and Services are “commercial items,” as defined at FAR 2.101, developed exclusively at private expense.  Accordingly, Government technical data and rights related to the k>fivefour Program and Services include only those rights customarily provided to the public as defined in these Terms and Conditions of Use. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), and for the Department of Defense transactions, DFARS 252.227-7015 (Technical Data) and DFARS 227.7202-3 (Software and Documentation). If a U.S. federal government agency has a need for rights not conveyed under these terms, it must negotiate with k>fivefour a mutually acceptable written addendum to this EULA specifically conveying such rights.

19(d). Severability and Continued Enforceability

If any of the provisions of this EULA shall be found to contravene any binding law or regulation (including any provision in the Federal Acquisition Regulations or other rule promulgated by the General Services Administration), or is found to be invalid or unenforceable by a court of law, it is agreed that the invalidity, unenforceability or illegality of such provision should not invalidate any other provision of this EULA, but this EULA shall be construed as if it did not contain the provision or provisions found to be invalid in the particular jurisdiction(s) concerned, and the rights and obligations of the parties hereto shall continue accordingly in full force and effect.

19(e). Non-Waiver of Rights or Remedies

The failure of k>fivefour to take any action under this EULA, or the waiver of a breach of any part of this EULA, shall not affect k>fivefour’s rights to require performance hereunder or constitute a waiver of any subsequent breach.  To be valid, a waiver shall be in writing but need not be supported by consideration.

19(f). Recovery of Attorneys’ Fees and Enforcement Costs

Should k>fivefour incur attorneys’ fees or costs in order to enforce this EULA, whether or not a legal action is instituted, k>fivefour shall be entitled to recover its reasonable attorneys’ fees and costs, in addition to all other rights and remedies it may have at law or in equity.

19(g). Construction, Interpretation, and Headings

This EULA shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either You or k>fivefour, and ambiguities shall not be interpreted against the drafting party. In interpreting this EULA, the word “or” shall not be construed as exclusive, and the word “including” shall not be construed as limiting.  The headings herein are for reference only and shall not define or limit the provisions hereof.

19(h). Governing Law, Venue, and Waiver of Jury Trial

This EULA and any claims arising out of this EULA shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts of law principles.  The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the Fairfax County Circuit Court, Fairfax, Virginia or the U.S. District Court for the Eastern District of Virginia, Alexandria, Virginia and hereby irrevocably and unconditionally waive any defense or objection, whether procedural or otherwise, based upon lack of personal jurisdiction, inconvenient forum or the like.  Each party hereby waives its right to a jury trial in any court action arising between the parties, and whether made by claim, counterclaim, third party claim or otherwise.

19(i). User Activity Monitoring and Data Collection Notice

In accessing the Services and Program, You specifically acknowledge that k>fivefour will collect User data and information, sometimes automatically, related to your access and use of the Services and Programs. You further acknowledge that k>fivefour may monitor or otherwise track your use of the Services and Programs, at all times. All User data we collect through or in connection with the Services and Program is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through the Program, You consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

20. Entire Agreement

This EULA constitutes the entire agreement between You and k>fivefour and supersedes all prior or contemporaneous understandings.   k>fivefour Support support@kfivefour.com