This Subscription Agreement (“Agreement”) is by and between PasswordPing Ltd. d/b/a Enzoic, a Colorado limited liability company (“Enzoic,” “PasswordPing,” “we,” or “us”), and the person (individual or legal person) whose name appears on the signature line of the Agreement or on any document that incorporates the Agreement by reference (“Customer” or “you”) and is effective on the Effective Date, as defined by date of last signature on the initial Order.
Enzoic offers compromised credential detection and various identity monitoring services. This Agreement enables you to place orders with Enzoic to obtain access to the Enzoic service offerings (each order accepted by Enzoic under this Agreement, an “Order”). This Agreement includes the terms and conditions under which Enzoic will provide You with access to the Enzoic services specified in each Order (the “Services”).
The parties, by their authorized representatives, enter into and agree to be legally bound by this Agreement.
1. TERM. The term of this Agreement will begin on the Effective Date and, unless earlier terminated as specified herein, will continue until this Agreement is terminated as specified herein. Each Order under this Agreement will continue for the term stated in that Order, unless earlier terminated as specified herein or in that Order. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer’s purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement.
2. ORDERS. You may enter into one or more Orders under this Agreement. Each Order may be placed in any form acceptable to Enzoic. Enzoic may accept Orders by providing notice to You, by providing You with access to the Enzoic Service specified in the Order, or as indicated in the applicable Order. If any conflict arises between the terms of any Order and the terms of this Agreement, the terms of the Order will control.
3.1 Scope. The scope and functionality of each Service is as specified in each applicable Order for that Service, including any applicable sources, frequencies, volumes, or other attributes specified therein (“Attributes”). Enzoic not responsible for requests to access or use any Service outside of the applicable Attributes for that Service. You are responsible for entering into a new Order with Enzoic to reflect any changes in any applicable Attributes.
3.2 Access. Following acceptance by Enzoic of an Order under this Agreement, you will have the right to access and use the Services specified in that Order solely for your own lawful business purposes, as further specified on each Order. Your access to and use of all Services is subject to the terms and conditions stated herein and in each applicable Order. You have no right to access or use any services offered by Enzoic except for those Services specified in Orders accepted by Enzoic.
4. API. The Services are provided through the application programming interfaces identified and defined by Enzoic for each Service (the “Enzoic APIs”). Subject to the terms of this Agreement, and provided that you remain in compliance with this Agreement, Enzoic will grant you a limited, non-exclusive, non-transferrable, non-sublicensable right to (1) access each Enzoic API specified in an Order by Enzoic, and (2) access and use any software development libraries or other tools for the Enzoic APIs that Enzoic provides or makes available to Customer (the “Enzoic SDK”). All access to or use of the Enzoic APIs and Enzoic SDK will be solely in accordance with the instructions and documentation provided by Enzoic to enable your access to and use of each applicable Service. Enzoic may update or modify the Enzoic APIs or Enzoic SDK at any time. The Enzoic APIs and Enzoic SDK include any such update or modification. Enzoic will provide you with notice of and applicable documentation for any such update. Except as expressly stated in this Section, you receive no rights or licenses (whether by implication, estoppel, or otherwise) to access or use any Enzoic API or the Enzoic SDK.
5. RESTRICTIONS. The Enzoic SDK and the underlying software, hardware, and technology used to provide the Services and Password API, as well as all data and information used to provide the Services and the structure and organization thereof (collectively, the “Enzoic Technology”), constitutes the valuable IPR (as defined below) of Enzoic. This Agreement grants you no rights to directly access or use the Enzoic Technology or any portion thereof except as defined in the Order. As a condition of your rights under this Agreement to access and use the Services and Enzoic API and Enzoic SDK, you agree that you will not and will not permit anyone to: (1) directly access or use (or attempt to directly access or use) any Enzoic Technology for any purpose other than specified in the Order; (2) access or use (or attempt to directly access or use) the Enzoic SDK or any Service or Enzoic API for any purpose except as expressly provided in this Agreement; (3) modify, adapt, alter, translate, or create derivative works from any Service, Enzoic API, Enzoic SDK, or Enzoic Technology except as outlined in the Order; (4) sublicense, distribute, sell, transfer, or otherwise share your right to access or use the Enzoic SDK or any Service or Enzoic API with or to any third party; (5) use the Enzoic SDK or any Service or Enzoic API for the benefit of any third party or make the Enzoic SDK or any Service or Enzoic API available to any third party; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the any Service or the Enzoic API, Enzoic SDK, or Enzoic Technology; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any Service or the Enzoic API, Enzoic SDK, or Enzoic Technology; (8) interfere in any manner with the operation of any Service or the Enzoic API, Enzoic SDK, or Enzoic Technology; (9) access or use any Service or the Enzoic API or Enzoic SDK in any manner that violates any applicable laws, the rights of any third party, or any agreement by which you are bound or would cause Enzoic to violate any applicable laws or the rights of any third party; or (10) alter, obscure, or remove any copyright notice, copyright management information, or proprietary legend from any Service or Enzoic Technology.
6. SUPPORT. If you enter into an Order for support under this Agreement, Enzoic will provide you with reasonable applicable support services for the Services, Enzoic API, or Enzoic SDK specified in that Order. All support services will be subject to the terms of this Agreement, in addition to the terms of such Order. Except as specified in any such Order, Enzoic is under no obligation to provide to you with any maintenance or support relating to the Services, Enzoic API, or Enzoic SDK.
7. FEES AND PAYMENT. You agree to pay Enzoic the fees and other amounts specified in each Order (“Fees”). Fees are due and payable as set forth in the Order specifying those Fees. If an Order does not specify applicable payment terms for any Fee, the Fee will be due and payable on a monthly basis in advance within 30 days of Enzoic’s invoice containing the Fee. If you have specified credit or debit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, you grant Enzoic the right to charge the credit card or debit the bank account provided to Enzoic for all Fees. All Fees will be non-refundable. Fees do not include any taxes or other governmental charges. You are responsible for paying all such taxes and other charges imposed by way of the performance of either party under this Agreement, excluding taxes based on Enzoic’s net income. All past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law.
8. OWNERSHIP. Enzoic retains all right, title, and interest in and to the Services, Enzoic API, Enzoic SDK, and Enzoic Technology, any updates, upgrades, enhancements, modifications and improvements thereto (“Improvements”), and all intellectual property and proprietary rights therein or relating thereto throughout the world, including all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, and other intellectual property and proprietary rights throughout the world (“IPR”). You receive no ownership interest in or to any of the foregoing and you are granted no rights or licenses to use any of the foregoing except for the rights expressly granted under this Agreement. You agree to and hereby acknowledge that the names and logos of Enzoic and those of its providers and licensors are trademarks of Enzoic or its third party providers, as applicable, and no right or license is granted to you to use them.
9. TERMINATION. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to remedy such breach within 30 days after receiving notice of the breach from the other party. Upon any termination of this Agreement: (a) all rights granted to you hereunder will immediately terminate; (b) Enzoic will have no further obligation to provide any Services to you and you will cease access to any use of the Services, Enzoic API, and Enzoic SDK; (c) all Fees and other amounts you then owe under this Agreement will become immediately due and payable to Enzoic; and (e) you will return to Enzoic or (if so notified by Enzoic) destroy, all copies of all Enzoic Confidential Information. Upon the request of Enzoic you will certify in writing to your compliance with the terms of this Section. The relevant portions of Sections 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 will survive termination of this Agreement for any reason. Without limiting any right of termination, Enzoic may suspend your access to the Services and Enzoic API if reasonably necessary to prevent any damage, injury, or harm to Enzoic, any Enzoic Technology, or any other Enzoic customer or third party.
10. REPRESENTATIONS AND WARRANTIES.
10.1 General. Each party represents and warrants to the other party that: (a) such party has the full legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; (c) this Agreement will not conflict with or result in a breach of any other agreement or obligation of such party; and (d) such party has all legal rights and authority necessary to perform its obligations under this Agreement and to grant all rights and licenses set forth in this Agreement.
10.2 Performance. Enzoic represents and warrants to you that Enzoic will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with the requirements specified in each Order under this Agreement. Your sole and exclusive remedy in the event of any failure by Enzoic to comply with the foregoing sentence will be for Enzoic to, at its option, re-perform the affected Services or refund to you the portion of any Fees attributable to the affected Services.
11. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, PASSWORD PING SDK, AND ENZOIC API ARE PROVIDED BY ENZOIC AND ITS PROVIDERS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. ENZOIC EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELIANCE ON, ANY OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT OR THE SERVICES, ENZOIC SDK OR ENZOIC API, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.
12.1 By You. You will indemnify, defend, and hold harmless Enzoic (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection with or as a result of: (1) your use of or access to the Services or Enzoic API, including any results generated through the Services, in a manner inconsistent with this agreement; (2) any Customer Data or any use thereof; or (3) your breach of this Agreement; or (4) any damage to property or injury to or death of any person directly or indirectly caused by your actions. Enzoic agrees to give you prompt notice of any claim subject to this Section.
12.2 By Enzoic. Enzoic will indemnify, defend, and hold harmless you (and your officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection with or as a result of any claim or allegation made against You alleging that your use of the Services or Enzoic API in accordance with this Agreement infringes any third party patent or copyright issued under the laws of the U.S. or misappropriates any third party trade secret valid under the laws of any state in the U.S.. Enzoic will also pay all settlements entered into and damages awarded against you to the extent based on such a claim or action subject to this Section. If the Service or Enzoic API becomes, or if Enzoic believes is likely to become, the subject of a claim of infringement or misappropriation subject to this Section, Enzoic may, in its sole discretion, replace or modify the Services or Enzoic API, procure for you the right to continue using the Services or Enzoic API under this Agreement, or terminate this Agreement and require you to cease use of the Services and Enzoic API. In the case of any such termination, Enzoic will refund to you any pre-paid portion of any Fees. Enzoic shall not be liable for any costs or expenses you incur in connection with any claim of infringement or misappropriation without Enzoic’s prior written authorization. Enzoic will have no obligation under this Section in the case of any: (a) use of or access to the Services or Enzoic API in breach of this Agreement; (b) use of or access to the Services or Enzoic API other than as specified in any applicable documentation or Order; (c) software, hardware, equipment, systems, services, or other technology not provided by Enzoic; or (d) use of the Services or Enzoic API after Enzoic has notified you to cease use thereof. THIS SECTION STATES THE SOLE AND EXCLUSIVE LIABILITY OF ENZOIC, AND THE SOLE AND EXCLUSIVE REMEDY FOR YOU, FOR ANY INFRINGEMENT OR MISAPPROPRIATION CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SERVICES, OR THE ENZOIC API.
13. LIMITATION OF LIABILITY. IN NO EVENT WILL ENZOIC BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF THE SERVICES, ENZOIC API, ENZOIC SDK OR THIS AGREEMENT, INCLUDING ANY LOSS OF DATA, OPPORTUNITY, REVENUES, PROFITS, OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THE MAXIMUM CUMULATIVE LIABILITY OF ENZOIC RELATING TO THE SERVICES, ENZOIC API, ENZOIC SDK, OR THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE AMOUNTS PAID TO ENZOIC UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means the terms of this Agreement, the Enzoic API, Enzoic SDK, Enzoic Technology, and all documentation, information, data, and materials relating to the Services, regardless of the form thereof, including all copies and extracts thereof. All You will not disclose any Confidential Information to any third party without Enzoic’s prior written consent. You may disclose Confidential Information only to those of its employees who have a need to know the Confidential Information for purposes of your valid use of the Services as permitted by this Agreement, provided those employees are bound by an obligation of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. You will treat all Confidential Information with the same degree of care as you treat your own confidential information which, in no event, will be less than reasonable care. You will not utilize the Confidential Information other than as expressly permitted in this Agreement.
15.1 Customer Data. You are solely responsible for all data, information, and other content provided to Enzoic through any Service or Enzoic API (“Customer Data”). Enzoic will not use your Customer Data other than to provide the Services and perform its obligations under this Agreement. Enzoic is not responsible or liable for any deletion or loss of your Customer Data and will maintain your Customer Data only for so long as is required to provide the Services and perform its obligations under this Agreement. You grant Enzoic such rights in the Customer Data as are necessary for Enzoic to provide the Services and perform its obligations under this Agreement. Enzoic is under no obligation to review any Customer Data for accuracy or potential liability. You assume all risks associated with the use of any Customer Data in the Services, including any reliance on any Customer Data or the form, format, accuracy, completeness, or usefulness thereof.
15.2 Data Security. Enzoic will maintain a data security program providing commercially reasonable safeguards and measures to protect the security of Customer Data during processing by the Services. Enzoic will otherwise have no responsibility or liability for any Customer Data or for any deletion, destruction, or loss of any Customer Data.
16. DISPUTES. The parties will attempt to resolve any disputes, controversies, or claims arising under, out of, or relating to this Agreement (“Disputes”) through good faith negotiations. Any Dispute that cannot be resolved through good faith negotiations will be settled exclusively through binding arbitration as follows. If within 10 business days, or 5 business days in the event of a Dispute related to Fees or IPR, the parties are unable to resolve any Dispute, either party may submit the Dispute for final settlement through binding arbitration by the International Chamber of Commerce (“ICC”) under its arbitration rules then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language in Denver, Colorado (USA) or such other location as may be designated by Enzoic. The award of the arbitrator(s) will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator(s). The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
17. U.S. GOVERNMENT CUSTOMERS. The Enzoic Technology is a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government Users acquire solely the rights expressly granted herein (if any) with respect thereto.
18. EXPORT. The Services, Enzoic SDK, and Enzoic API may be subject to U.S. export control Laws and export or import regulations in other countries. You agree to strictly comply with all such Laws and acknowledge that it has the responsibility to obtain such licenses to export, re-export or import as may be required.
19. NOTICES. All notices to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) Federal Express or a comparable traceable overnight mail service; (3) email, provided a receipt or confirmation is received from the intended recipient demonstrating that the intended recipient received the email; or (4) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused) or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
20. GOVERNING LAW AND VENUE. This Agreement will be governed by the Laws of the State of Colorado (USA), without regard to conflicts of law principles thereof. The federal and state courts located in Denver, Colorado (USA) will have sole and exclusive jurisdiction over any disputes arising hereunder. The parties irrevocably submit to the personal jurisdiction of such courts.
21. GENERAL. This Agreement includes these terms and conditions and each Order accepted by Enzoic under this Agreement. This Agreement is the complete and exclusive agreement between you and Enzoic regarding the subject matter hereof and supersedes all oral or written agreements, proposals, or understandings between the parties as to the subject matter of the Agreement. This Agreement is in the English language, which language will be controlling in all respects. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law and the remaining provisions of this Agreement will continue in full force and effect. Nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. Enzoic will not be held responsible for failure or delay in the performance of any obligation under this Agreement if such failure or delay is beyond its reasonable control. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. Each party will promptly execute all assignments and other documents, and take all other actions, as may be reasonably required to enable the other party to perfect, defend, and enforce the benefit of the rights of each party established under this Agreement. You may not assign, transfer or delegate, in whole or in part, whether by assignment, sale, merger, reorganization, operation of law, or otherwise, this Agreement or any of its rights or obligations under this Agreement, to any third party without the prior written consent of Enzoic. For the purposes of this Agreement, any change of control you undergo will be deemed an assignment. Enzoic may assign this Agreement upon notice to you. Any assignment in violation of the foregoing will be null and void and will be considered a breach of this Agreement. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” The parties expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Agreement.