These ENTERPRISE TERMS OF SERVICE (the “Agreement”) are entered into by and between you and Decrypton. Specific business terms associated with your subscription to the Service (as defined in Section 1.1 below) will be stated in one or more ordering documents executed by the parties (or you and a Reseller) that reference this Agreement and are hereby incorporated into this Agreement by reference (“Order Form”). For the purposes of this Agreement, “you”, “your”, or “Customer” means the party identified as the customer in the applicable Order Form. By executing an Order Form that references is Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Your Subscription. Decrypton is the owner and provider of the Decrypton cloud-based intelligence tool and service, which is designed to allow customers to input and analyze data (the “Service”). Subject to the terms of this Agreement, Customer may purchase a subscription to the Service as specified in an Order Form. All subscriptions will be for the period described on the Order Form (“Subscription Period”). Subject to the terms of such Order Form and this Agreement, Customer may access and use the Service. Such use and access is permitted only by individuals authorized by Customer to use the Service for Customer’s own internal business operations (and not for the benefit of any third party) (“Users”). Users may also use Decrypton’s generally published technical documentation associated with the Service (“Documentation”) solely for Customer’s internal business purposes. Customer will not receive or have access to a copy of the code or software that underlies the Service (collectively the “Software”) or receive a copy of the Software itself. Customer may permit its affiliates’ employees and contractors (provided such contractors are working for the benefit of Customer or such affiliates) to serve as Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement. An “affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. Any term capitalized and not defined herein will have the definition given to such term in the applicable Order Form. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Decrypton to resell the Service.
1.2. Support and Service Level Policy. Decrypton will make commercially reasonable efforts to provide basic technical support for the Service in accordance with its support and service level policy attached to this Agreement as Exhibit A (“Support and Service Level Policy”).
1.3. Users. As part of the registration process, a single administrative User will receive login credentials from Decrypton; such User will have the capability to invite any other Users to create accounts on the Service. Customer will ensure that its Users are aware of and bound by obligations and/or restrictions stated in this Agreement and Customer will be responsible for breach of any such obligation and/or restriction by a User. Customer will (a) be responsible for ensuring the security of its account and confidentiality of all user IDs and passwords for the Service, (b) prevent unauthorized access to, or use of, the Service, (c) be fully responsible for monitoring and administrating the various uses and Users of the Service, (d) ensure the quality and integrity of Customer Data, and (e) notify Decrypton promptly of any unauthorized use of the Service or any breach, or attempted breach, of the security of the Service. Customer is responsible for all activities of its Users on the Service and is responsible for all uses of Customer’s account. Decrypton may access Customer’s account (i) to respond to technical problems, (ii) in connection with providing and maintaining the Service and the development of new Service features and improvements, (iii) at Customer’s request, (iv) to comply with legal or contractual requirements, and/or (v) when necessary to provide the Professional Services (as defined below).
1.4. Decrypton’s Ownership. Decrypton owns the Service and the Documentation (collectively the “Decrypton Materials”). Decrypton retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Decrypton Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by Decrypton.
4.1. Fees. Customer will pay for access to and use of the Service as set forth in the Order Form (“Fees”). All Fees will be paid in U.S. dollars. Payment obligations are non-cancellable and, except as expressly stated in this Agreement, non-refundable. We may modify our Fees or introduce new fees in our sole discretion; however, any new or revised Fees will only become effective upon the renewal of a Subscription Period (“Renewal Period”).
4.2. Payment. We will invoice you for the Fees and any other applicable fees (e.g., bank transfer fees) in accordance with the Order Form. Customer agrees to pay all invoices submitted in accordance with this Agreement or the Order Form within thirty (30) days after the invoice date. All information that you provide in connection with a purchase or transaction or other monetary transaction with the Service must be accurate, complete, and current. If Customer has executed an Order Form with a Reseller, Customer will pay such Reseller (and not Decrypton) in accordance with the terms of such Order Form. Notwithstanding the foregoing, Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order Form, Decrypton will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer.
4.3. Taxes. Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
4.4. Failure to Pay. If you fail to pay any Fees in accordance with this Section 4, we may suspend your access to the Service pending payment of such overdue invoices; provided that we give you notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue Fees in full. If Customer believes that we have billed you incorrectly, Customer must contact us no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Overdue Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower.
4.5. Adding Users. Users that are given administrative permission by Customer may add Users at any time through the Service. Upon adding additional User(s), you will have thirty (30) days to purchase a pro-rata subscription for such User(s) at the same price stated on the applicable, then-current Order Form by executing a new Order Form with us. If, within such thirty (30) day period, you do not execute a new Order Form for such additional Users, you will be invoiced the current list price for those Users for the remainder of the Subscription Period. The number of Users purchased under an Order Form cannot be decreased during the Subscription Period; the number of Users purchased may only be decreased upon renewal.
5.1. Agreement Term. This Agreement will become effective on the Subscription Start Date of the first Order Form entered into by the parties and remain effective for the duration of each Order Form including any renewals thereof. If the parties terminate this Agreement, it will automatically terminate all Order Forms.
5.2. Order Form Term and Renewal. Subscriptions to access and use the Service commence on the start date stated on the applicable Order Form (“Subscription Start Date”) and continue for the duration of the Subscription Period. Each Order Form will renew as stated on such Order Form. Either party may choose not to renew any Order Form by giving the other party notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Period.
5.3. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
5.4. Effect of Termination. If Customer terminates this Agreement as a result of Decrypton’s uncured breach, we will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period (as stated on the applicable Order Form). Upon any termination for cause by us, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to us for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights and licenses granted by Decrypton hereunder will immediately terminate; Customer will no longer have the right to access or use the Service. Within 30 days of any termination or expiration, Decrypton will delete Customer’s passwords and all related information, files and Customer Data, unless Customer requests an earlier deletion in writing.
5.5. Survival. Sections 1.4, 4, 5, 6.2, 7, 8, 9, 10.2, 10.3, and 11 will survive any termination or expiration of this Agreement.
6.1. Decrypton Warranties. Decrypton represents and warrants that (a) it will comply with all applicable federal, state and local United States laws and regulations with respect to its business operations under this Agreement and all applicable United States and European Union laws with respect to its processing and use of Customer Data; (b) the Service will substantially comply in all material respects with the Documentation, (c) it will provide the Support Service in a professional and workmanlike manner, (d) it has used commercially reasonable efforts to ensure that the software underlying the Service and the environment used for the Service contain no Harmful Code, and (e) it uses commercially reasonable efforts to prevent the introduction of Harmful Code into the software underlying the Service and the environment used for the Service. For purposes of the Agreement, “Harmful Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record or transmit data in a manner not intended by the computer, system or network, or in some other fashion disrupt the normal operation of a computer, system or network. If the Service is not provided in accordance with the above warranty, Customer will promptly notify Decrypton and Decrypton will make commercially reasonable efforts to rectify such non-compliance; if Decrypton is not able to so modify or otherwise fix the Service, Decrypton will terminate this Agreement and refund any unused pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and Decrypton’s sole liability if Decrypton breaches the terms of Section 6.1.
6.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.1. Decrypton’s Indemnification. Decrypton will defend Customer and its Users, officers, directors, and employees against any third party claim or action brought against Customer to the extent based on the allegation that the Service infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) and we agree to pay any settlements with respect to the foregoing indemnification obligations that Decrypton agrees to in a writing signed by Decrypton’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of either that are (a) not provided by Decrypton, (b) combined with other products, processes or materials that are not reasonably contemplated by us or our Documentation, or (c) where Customer’s use of the Service is not in accordance with this Agreement or our Documentation.
8.2. Procedures. Decrypton’s obligations under Section 8.1 are conditioned on Customer (a) providing Decrypton with prompt written notice of any claim, (b) granting Decrypton the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Decrypton in the defense or settlement of the claim at Decrypton’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of Decrypton to defend, indemnify and hold Customer harmless hereunder is limited to Decrypton’s payment for the cost of defense of the third-party claim incurred by Decrypton and the payment of (i) any settlements agreed to by Decrypton in a writing signed by an officer of Decrypton, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction.
8.3. Options. If Customer’s use of the Service has become, or in Decrypton’s opinion is likely to become, the subject of any claim of infringement, Decrypton may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing, (c) substitute an equivalent for the Service or (d) if Decrypton, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
8.4. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 8 STATES DECRYPTON’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
9.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Decrypton’s Confidential Information includes non-public information regarding features, functionality and performance of the Service. Customer’s Confidential Information includes the User Information and Customer Data. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
9.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, Sub processors (as described in the Data Processing Addendum referenced below), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfil its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with prospective investors or acquirors; provided, however, that the foregoing are bound to standard confidentiality obligations.
9.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
9.4. Feedback. You may from time to time provide suggestions, comments or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Decrypton regarding the Service and will not include your Personal Data. Decrypton may want to incorporate Feedback into its Service and this clause provides us with the necessary license to do so. You hereby grant to us and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as we see fit, entirely without obligation or restriction of any kind, except that Decrypton will not identify you as the provider of such Feedback.
10.1. User Information. In order to use the Service, Customer and its Users are required to provide User Information and other information in order to access the Service. Customer grants Decrypton and its subcontractors the right to store, process and retrieve the information associated with Customer’s account, such as IP address, username, password, and any personally identifiable information including, without limitation, name, phone number, or email address (“User Information”), provided to Decrypton in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained express written consent from its Users to transfer User Information to Decrypton and to process the User Information as contemplated by the Users’ use of the Service. Customer (on behalf of its Users) grants us the right to access, use, process, copy, distribute, perform, export and display User Information, only as reasonably necessary (a) to provide the Service to you (including the transfer of User Information to us); (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you.
10.2. Customer Data. The Service is designed to allow Customer to input and analyze data within the Customer’s data warehouse (“Data Warehouse”). The Customer acknowledges and agrees that data from the Data Warehouse is not stored or cached within the Service. Any Data Warehouse data that is disclosed to Decrypton will be deemed “Customer Data.” Decrypton will have access to the Customer Data only if permitted by Customer; the parties anticipate that such access will only be for the purpose of providing Professional Services or support for the Service. To the extent that Customer Data is shared with Decrypton, Customer grants Decrypton and its licensors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process and display such Customer Data for the purpose of providing the Service or the Professional Services. Except as expressly provided herein, Customer will own all right, title and interest in and to the Customer Data.
10.3. Usage Data. As we operate the Service, we collect data pertaining to the performance of the Service and measures of the operation of the Service (“Usage Data”). Notwithstanding anything else to the contrary herein; provided that the Usage Data is aggregated and anonymized, and no personal identifying information of Customer is revealed to any third party, the parties agree that Decrypton is free to use the Usage Data in any manner. Decrypton owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give Decrypton the right to identify Customer as the source of any Usage Data.
10.4. Data Processing Addendum. We will process any User Information and Customer Data that you provide to us in accordance with our data security policy attached hereto as Exhibit B (“Security Addendum”) and the data processing addendum referencing this Agreement, if separately executed by the parties (“Data Processing Addendum”). If there is a conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum will prevail.
11.1. Publicity. Decrypton may identify Customer and use and display Customer’s name, logo, trademarks, or service marks on Decrypton’s website and in Decrypton’s marketing materials, including without limitation press releases, announcing Customer, why Customer chose Decrypton, and how Customer will use Decrypton, without Customer’s prior written consent. Customer will be given the opportunity to provide input and feedback on the press release, as well as a quote, prior to distribution. Customer will consider participating in a case study, webinar, and other joint marketing activities six to nine months post deployment.
11.2. Force Majeure. Except for Customer’s payment obligations hereunder, neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.3. Changes. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience Decrypton may make changes to the Service provided, however Decrypton will not materially decrease the core functionality of the Service. The Service Level Policy, Data Processing Addendum, and Security Addendum may be modified from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; however, Decrypton agrees any such modifications will not materially decrease Decrypton’s obligations or materially reduce Customer’s rights as compared to those reflected in such terms as of the Subscription Start Date of the first Order Form entered into by the parties.
11.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
11.6. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, although we may instead choose to provide notice to Customer through the Service, (b) notices to us must be sent to contact@darcondgital.com, and (c) all notices to Customer will be sent to the email(s) provided through the Service. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Service.
11.7. Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
11.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
11.11. Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
