END USER LICENCE AGREEMENT
Last Updated: 15 August 2020
PLEASE READ THIS END USER LICENSE AGREEMENT (“LICENSE” OR “AGREEMENT’) CAREFULLY. BY DOWNLOADING OR USING THE SOFTWARE AND SERVICES OF DATA443 RISK MITIGATION INC. (THE “SERVICES”), YOU ARE ENTERING INTO A CONTRACT AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
THIS LICENSE IS A LEGALLY BINDING AGREEMENT BETWEEN THE USER OR SUBSCRIBER OF THE SERVICES (“CUSTOMER” OR “USER” OR “YOU”) AND DATA443 RISK MITIGATION INC., A NORTH CAROLINA CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 101 J MORRIS COMMONS LANE, SUITE 105, MORRISVILLE, NC 27560 (“COMPANY” OR “DATA443” OR “WE” OR “US”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER”, “USER”, “YOU”, AND “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS THIS AGREEMENT AND MAY NOT USE THE SERVICES. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS A CONTRACT BETWEEN YOU AND DATA443, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED BY YOU, AND IT GOVERNS YOUR USE OF THE SERVICES.
IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT INSTALL OR USE THE SERVICES. YOU AGREE THAT BY USING THE SERVICES, YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THE TERMS IN THIS LICENSE. IF YOU DO NOT AGREE WITH ALL OF THIS LICENSE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE.
Supplemental Terms. Supplemental terms and conditions or documents that may be posted on the Data443 Website (“The Site”) from time to time are hereby expressly incorporated herein by reference. We reserve the right, at our sole discretion, to make changes or modifications to this License at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of this License, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review this License to stay informed of updates. You will be subject to, will be deemed to have been made aware of, and to have accepted, the changes in any revised License by your continued use of the Services after the date such revised License is posted.
The Services are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use the Services.
There shall be no force or effect of any conflicting terms of any related purchase order or equivalent form, even if agreed to by the parties.
- SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Services that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Services during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, or any related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Customer Data may include the data of Customer’s users and clients that Customer is authorized to possess by such users and clients, and in some cases this data may be categorized as personal data, as that term is defined in applicable law (“Personal Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 CCPA. Neither Customer nor Company will retain, use, or disclose any Personal Data that, under the California Consumer Protection Act (“CCPA”), constitutes “personal information” (“CA Personal Information”) for any purpose other than for the specific purpose provided under this Agreement, including the processing of the Personal Data for direct marketing purposes, or as otherwise permitted by CCPA, including retaining, using, or disclosing the CA Personal Information for a commercial purpose (as defined in CCPA). Each Party shall not (a) sell any CA Personal Information; (b) retain, use or disclose any CA Personal Information for any purpose other than for the specific purpose provided under this Agreement, including the processing of the Personal Data for direct marketing purposes and retaining, using, or disclosing the CA Personal Information for a commercial purpose (as defined in the CCPA) other than as necessary to fulfill obligations under this Agreement; or (c) retain, use or disclose the CA Personal Information outside of the direct business relationship between the Parties. Each Party hereby certifies that it understands its obligations under this section and will comply with them. Notwithstanding anything in the Agreement or any order form entered in connection therewith, the parties acknowledge and agree that each Party’s access to CA Personal Information or any other Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.
- PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Services capacity limitation set forth on an applicable order form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (as defined on the order form) or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to request an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 We accept Visa, Mastercard, American Express, Discover and PayPal forms of payment. Except as noted in Section 4.1, all sales are final and no refunds apply.
4.3 You agree to provide current, complete, and accurate purchase and account information for all purchases made for the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases of the Services. Sales tax will be added to the price of purchases where required, as we determine. We may change the sale price of Services at any time. All payments shall be made in either U.S. Dollars, European Euros, Canadian Dollars or United Kingdom Pounds Sterling.
4.4 You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site.
4.5 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the date of the invoice. Unpaid past due amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be responsible for all taxes associated with the Services except for U.S. taxes based on Company’s net income.
- TERM AND TERMINATION
5.1 Subject to earlier termination as provided below or as otherwise noted on the relevant order form, this Agreement is for the Initial Service Term of one (1) year and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any professional services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Company Indemnification.
7.1.1 Company shall indemnify, defend, and hold harmless Customer from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction (“Losses”) incurred by Customer resulting from any third-party claim that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents or copyrights, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.
7.1.2 If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
7.1.3 This Section 7.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; or (C) Customer Data; or (D) third-party products.
7.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any third-party claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any third-party claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Services not made by Company, provided that Customer may not settle any third-party claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
7.3 Sole Remedy. THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL COMPANY’S LIABILITY UNDER THIS SECTION 7 EXCEED $10,000.
- LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY OR CUSTOMER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE (1) TIMES THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO COMPANY UNDER THIS AGREEMENT.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties with regard to this license of the Services and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release on signing and or effective date and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request, including but limited to Reference Calls, Case Study and Success Story.