This End-User License Agreement (this “EULA,” and together with the setup form, subscription agreement or other agreement into which this EULA is incorporated by reference, collectively, the “Agreement”) contains certain terms and conditions on which Project Cypher FZ, LLC, (the “Company”) grants to the person identified as “Customer” in the Agreement (“Customer”) a limited license to use the Software (as defined below).
- Software. The “Software” means all software programs and applications of the Company to which Customer subscribes or that are otherwise provided to Customer by the Company, and includes, without limitation, (as applicable) both the trial and full (paid) versions of such Software, together with any application programming interface, data feed and other access methods provided by the company in connection therewith, and all other associated programs, technology, media, printed materials and online or electronic documentation. The trial version of the Software may be used only to review, test and evaluate the Software for a limited period of time (as further provided in the Agreement), and search results and associated content delivered in connection with the trial version may not be copied or otherwise used by Customer for any other purpose (including providing commercial products or services to others) without the Company’s prior written consent.
- License. Subject to the other terms and conditions of the Agreement, the Company grants to Customer a non-exclusive, non-transferable, non-sublicensable limited license to use the Software for the purposes contemplated by the Agreement. With respect to the trial version of the Software, that license is limited to use solely for Customer’s evaluation of the Software as provided in Section 1. The Software is provided under license and not sold to Customer, and Customer does not acquire any ownership interest in the Software under the Agreement or any other rights thereto other than to use the Software in accordance with the license herein granted, subject to all terms, conditions and restrictions provided in the Agreement. The Company reserves and will retain its entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to Customer pursuant to this Section 2.
- Content Accessed via the Software. The results displayed or returned by the Software in response to Customer’s queries may contain information referring to or describing content collected from third-party Internet sources, including information located in the surface web, deep web or dark web (“Result Content”). Result Content may include secret, non-public or otherwise sensitive information that is not intended to be published or accessible by Customer or other third parties, and may be illegal for Customer to access or possess. Except as otherwise expressly provided in this EULA, all Result Content is provided without warranty of any kind, express or implied, and the Company is not responsible for any Result Content or liability resulting from Customer’s access or possession thereof.
- Agreements Regarding Customer’s Use of the Software
- Customer will not, directly or indirectly (i) use the Software, or any Result Content, in violation of any applicable law, (ii) use the Software beyond the scope of the license granted under Section 2, (iii) license, sublicense, rent, lease, lend, sell, assign, distribute, publish, transfer or otherwise make available to any other person the Software, any features or functionality of the Software, or any information generated by or results arising from the operation of the Software, except as otherwise expressly provided in the Agreement, (iv) use any information generated by or results arising from the operation of the Software to harass or impersonate others, (v) use any Result Content in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any person, (vi) use the Software to knowingly access any personal, confidential, secret or other non-public information of any third party without such third party’s permission, (vii) except as specifically authorized by applicable law, harvest or collect any third party’s personal or confidential information, such as credit card numbers, confidential national ID numbers or account passwords, (viii) modify, translate, adapt, copy or otherwise create derivative works or improvements of the Software, (ix) reverse engineer, disassemble, decompile, decode or otherwise attempt to discern or gain access to the source code of the Software, (x) except to the extent contemplated by the Agreement, combine the Software with, or incorporate the Software in, any other program, (xi) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software, (xii) use the Software for purposes of competitive analysis of the Software or the development of a competing software product or service or (xiii) use the Software in any manner that could harm, infect, take over, disable, overburden or otherwise impair any of the Company’s or its service providers’ computer systems.
- Customer will safeguard the Software against infringement, misappropriation, theft, misuse or unauthorized access using the access provided under the Agreement or otherwise by its employees, contractors and representatives and will keep any usernames and passwords associated with its use of the Software confidential. Customer is responsible for all use of the Software occurring under its account. Customer will promptly notify the Company of any unauthorized access of the Software under Customer’s account or disclosure or use of any username or password supplied to it by the Company for access to the Software.
- Customer will comply with any reasonable request by the Company for information in connection with any investigation conducted by the Company to verify Customer’s compliance with this EULA.
- Termination of License. The Company may, in its sole and absolute discretion, (i) terminate the license herein granted to Customer if Customer breaches the Agreement, or (ii) suspend the license herein granted to Customer if the Company reasonably suspects that Customer has failed to comply with the Agreement, upon reasonably detailed written notice to Customer of such reasonable suspicion, which suspension will last only so long as is reasonably necessary for the Company to conduct an investigation of the suspected noncompliance. The license herein granted to Customer will terminate automatically upon, and in accordance with the terms of, any setup form, subscription agreement or other agreement into which this EULA is incorporated by reference.
- Limited Warranties. The Company warrants to Customer that (i) the grant of the license made hereunder, and Customer’s use of the Software in accordance with the Agreement and for the purposes contemplated thereunder, will not infringe or otherwise violate the intellectual property rights of any third party, and (ii) in collecting the Result Content, the Company has not knowingly circumvented or breached any security system intended to prevent access to or the publication of such Result Content.
- Limitations and Exclusions of Liability
- Except as provided in Section 7, the Software is licensed to Customer “as is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, except as provided in Section 7, the company expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Software (including the Result Content), including all implied warranties of merchantability, fitness for a particular purpose, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company gives no warranty or undertaking and makes no representation of any kind that the Software will meet customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any availability, performance or reliability standards, or be free of errors, viruses or other harmful elements.
- In no event will the Company be liable to Customer for any use, interruption, delay or inability to use the software, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to correct, update or provide correct information, system incompatibility or provision of incorrect compatibility information, breaches in system security or any decision made or action taken by Customer in reliance upon results obtained from its use of the Software.
- In no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with the Agreement, breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not such party was advised of the possibility of such damages, in each case except (i) in the case of Customer’s infringement, misappropriation or other violation of the Company’s intellectual property rights associated with the Software and (ii) in connection with the obligations of the parties under Section 9.
- Except in respect of the Company’s obligations under Section 9.2, in no event will the Company’s total liability under or in connection with the Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total amount paid to the Company pursuant to the Agreement in exchange for the license herein granted.
- The limitations set forth in this Section 8 apply even if a party’s remedies under the Agreement fail of their essential purpose.
- Customer will indemnify, defend and hold harmless the Company and its affiliates, and each of their respective employees, officers, directors, managers, contractors, equity holders, agents and representatives, from any claim of any third party to the extent resulting from Customer’s breach of this EULA or Customer’s alleged violation of applicable law in connection with its use of the Software.
- The Company will indemnify, defend and hold harmless Customer and its affiliates, and each of their respective employees, officers, directors, managers, contractors, equity holders, agents and representatives, from any claim of any third party to the extent resulting from the Company’s breach of the limited warranties provided in Section 7.
- Any party entitled to indemnification or other benefits under Section 9.1 or Section 9.2 (the “Indemnified Party”) will give prompt written notice to the party obligated to provided such indemnification or other benefit (the “Indemnifying Party”) of any third party claim that is the subject of such indemnification or other benefit, provided that any delay in giving such notice will not limit the Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually prejudiced by such failure. The Indemnifying Party will have the right, but not the obligation, upon written notice to the Indemnified Party no later than 30 days after the Indemnifying Party’s receipt of notice of such third party claim, to assume the conduct and control of the settlement or defense of the third party claim, through counsel of its choice reasonably satisfactory to the Indemnified Party, and at the expense of the Indemnifying Party. The Indemnified Party will reasonably cooperate with the Indemnifying Party and its counsel in connection therewith, and the Indemnifying Party will permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel will be borne solely by such Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party in writing within 30 days after its receipt of notice of the third party claim that it elects to undertake the defense of the third party claim, or otherwise fails to comply with its obligations under this Section 9.3, then the Indemnified Party will have the right to conduct and control the settlement or defense of third party claim but will not thereby waive any right under this Section 9 in connection therewith. Any settlement or compromise of any third party claim by either party will require the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed.
- Export Regulation. The Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, or to any other jurisdiction outside of the United States without the Company’s prior written consent (including as provided in the Agreement). Customer will comply with all applicable law and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to Customer exporting, re-exporting, releasing or otherwise making the Software available outside the United States.
- The Agreement is governed by and will be construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or related to the Agreement or the license granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, in each case located in the city of Newark, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth in the Agreement will be effective service of process for any suit, action or other proceeding brought in any such court.
- The Agreement constitutes the sole and entire agreement between Customer and the Company with respect to the subject matter thereof, and supersedes all prior and contemporaneous negotiations, understandings and agreements, whether written or oral, between the parties with respect to such subject matter. In the event of any conflict between the provisions of this EULA and those of any other agreement between Customer and the Company in respect of the Software, the provisions of this EULA will control.
- Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the Company’s prior written consent, which consent the Company may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under the Agreement for which the Company’s prior written consent is required.
- The Agreement is for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
- The Agreement may be amended only by a written instrument signed by each of the parties thereto.
- No waiver by any party of any of the provisions of the Agreement will be effective unless expressly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This NONDISCLOSURE AGREEMENT (this “NDA”) is effective on the date (the “Effective Date”) set forth on the Setup Form to which it is attached (the “Setup Form”) by and between Project Cypher FZ, LLC (“Project Cypher FZ”) and the customer named on the Setup Form (“Client” and collectively with Project Cypher FZ, the “Parties”).
Whereas, Project Cypher FZ and the Client are interested in discussing a potential business relationship;
Whereas, Project Cypher FZ and the Client may disclose Proprietary Information (as defined below) to each other in connection with such discussions;
Now, therefore, in consideration of the premises and the mutual covenants contained herein, and intending to be legally bound, the Parties agree as follows:
- Proprietary Information. For the purpose of this NDA, “Proprietary Information” means any and all nonpublic information related to a Party’s business, operations or finances, regardless of the form or medium in which such information is stored or communicated, and regardless of whether it is marked confidential. By way of example and not limitation, Proprietary Information includes computer programs, technical drawings and information, computer code (both source and object code), algorithms, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics, customer and product development plans, forecasts, strategic information, and information concerning the financial affairs of a Party. Proprietary Information also includes any analyses, notes, compilations, memoranda or other documents that include or make reference to any Proprietary Information (including any materials prepared by a recipient of Proprietary Information).
- Exceptions. Proprietary Information does not include: (i) information that is made publicly available by a Discloser (defined below); (ii) information that is or becomes public through no breach of this NDA by the Recipient (defined below) or its Representatives (defined below); (iii) information that is developed independently by a Recipient reference to or use of Proprietary Information of the Discloser.
- Protection of Proprietary Information. A Party receiving Proprietary Information (a “Recipient”) from the other Party (a “Discloser”) will protect such Proprietary Information with the same degree of care that it uses to protect its own Proprietary Information, but in no event with less than a commercially reasonable degree of care. Recipient agrees that it will use Discloser’s Proprietary Information solely for the performance and use of the services contemplated by the Setup Form. Recipient will not disclose any Proprietary Information of Discloser to any third party, except those of its employees, contractors, agents or representatives (collectively “Representatives”) who (i) have a need to know such information for the purpose of performing or enforcing this NDA and (ii) are subject to a written agreement to protect the confidentiality of the Proprietary Information on terms materially equivalent to those contained in this NDA.
Recipient will promptly notify Discloser if it discovers any actual or suspected unauthorized use or disclosure of Discloser’s Proprietary Information that was provided to Recipient pursuant to this NDA. Recipient will be responsible for any breach of this NDA by any of its Representatives.
- Term and Termination. This NDA will commence on the effective date and continue for the duration of the provision of services contemplated under the Setup Form. Any Proprietary Information disclosed during such time will remain subject to the confidentiality obligations contained herein for a period of two (2) years following the end of such provision of services; provided, however, that any Proprietary Information that constitutes a trade secret under applicable law will remain subject to this NDA for as long as it remains a trade secret under applicable law.
- Return of Proprietary Information. Upon termination or expiration of this NDA, or at any time upon Discloser’s request, Recipient will return or destroy any and all Proprietary Information in its possession and confirm in writing that all such materials have been returned or destroyed, as applicable. Notwithstanding the foregoing, Recipient will have the right to retain an archival copy of Discloser’s Proprietary Information for legal or compliance purposes. Any information retained for archival purposes will remain subject to the confidentiality obligations contained herein.
- Compelled Disclosure. If a Recipient is requested or required to disclose Proprietary Information pursuant to the valid operation of law, Recipient shall (to the extent permitted by law) provide prompt written notice to the discloser and allow Discloser the opportunity to contest such disclosure. If Discloser contests disclosure, Recipient will cooperate with any such efforts of the Discloser. If Discloser does not successfully contest disclosure or otherwise waive the confidentiality obligations contained in this NDA, Recipient will disclose only that portion of the Proprietary Information that, in the opinion of Recipient’s counsel, is required to be disclosed. Any Proprietary Information disclosed pursuant to this Section 5 will otherwise remain subject to the obligations contained in this NDA.
- No Rights Granted. Except as otherwise expressly provided in the Agreement into which this NDA is incorporated, (i) nothing in this NDA grants a Recipient any rights in or to Discloser’s Proprietary Information, other than the limited right to review the Proprietary Information for the purpose of evaluating a potential business relationship, (ii) nothing in this NDA requires a Party to disclose any of its Proprietary Information or enter into any business relationship with the other Party, and neither Party makes any representation or warranty as to the accuracy or completeness of any Proprietary Information.
- Miscellaneous Provisions.
- Injunctive Relief. Recipient acknowledges and agrees that an actual or threatened breach of this Agreement by Recipient or its Representatives may cause irreparable harm to Discloser for which monetary damages may be inadequate. Accordingly, a Discloser will have the right to seek injunctive relief in a court of competent jurisdiction, without the necessity of posting any bond.
- Severability. If any provision of this Agreement is held unenforceable or illegal by a court of competent jurisdiction, it will be deemed severed from this Agreement and the remainder of this Agreement will continue in full force and effect.
- Remedies Cumulative. The rights and remedies afforded to a Party under this Agreement are cumulative, and may be exercised singularly or concurrently.
- Attorney’s fees. In any action to enforce the terms of this Agreement, the prevailing Party shall be entitled to its costs and attorneys’ fees.