Enzoic offers compromised credential detection and various identity monitoring services. This Agreement enables You to sign-up for Enzoic’s then-current subscription plans (each a “Subscription Plan”) listed on Enzoic’s website, available at enzoic.com (the “Website”), to obtain access to the Enzoic service offerings under the Subscription Plan subscribed by You. You may upgrade or downgrade Your Subscription Plan at any time. This Agreement includes the terms and conditions under which Enzoic will provide You with access to the Enzoic services specified in the Subscription Plan subscribed by You (the “Services”). Enzoic may modify the Services at any time, for any reason. As a courtesy to You and other users, Enzoic will normally provide advance notice of any material changes to the Services, but such advance notice is not required.
1. TERM. The term of this Agreement will begin on the Effective Date and will continue until terminated by either party as authorized under this Agreement.
2. SERVICES. During the term of this Agreement, you will have the right to access and use the Services specified in the Subscription Plan subscribed by You solely for Your own lawful business purposes, as further specified in such Subscription Plan. Your access to and use of all Services is subject to the terms and conditions stated herein and in the Subscription Plan subscribed by You. You have no right to access or use any services offered by Enzoic except for those Services specified in the Subscription Plan subscribed by You. You are responsible for all activities that occur under your account, whether or not you know about them.
3. ON-PREMISE SOFTWARE. To the extent specified in Enzoic’s documentation relating to the Services as updated from time to time, the Services may include or require certain software, including without limitation software plug-ins (the “On-Premise Software”), to be installed, operated, and hosted on-premises on Your equipment. 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 during the term of this Agreement to access and use any such On-Premise Software that Enzoic provides or makes available to You. Any such On-Premise Software will be deleted after the term of this Agreement. All access to or use of the On-Premise Software will be solely in accordance with the instructions and documentation provided by Enzoic (which may be updated by Enzoic from time to time) to enable Your access to and use of each applicable Service. Enzoic may update or modify the On-Premise Software at any time. The On-Premise Software includes any such update or modification. Except as expressly stated in this Section, You receive no rights or licenses (whether by implication, estoppel, or otherwise) to access or use any On-Premise Software. Enzoic may also make available open source software, including but not limited to software development libraries, in connection with this Agreement. You acknowledge that such open source software is not licensed to You under this Agreement. You will have only such rights and licenses, if any, to use the open source software as set forth in the licenses made available with the open source software.
4. RESTRICTIONS. The On-Premise Software and the underlying software, hardware, and technology used to provide the Services, 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 Intellectual Property Rights (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 this Agreement. As a condition of Your rights under this Agreement to access and use the Services and On-Premise Software, You agree that You will not and will not permit anyone to: (a) directly access or use (or attempt to directly access or use) the Service or any Enzoic Technology for any purpose other than specified in this Agreement; (b) modify, adapt, alter, translate, or create derivative works from any Service or Enzoic Technology except as outlined in this Agreement; (c) sublicense, distribute, sell, transfer, or otherwise share Your right to access or use any Service or On-Premise Software with or to any third party; (d) use any Service or On-Premise Software for the benefit of any third party or make any Service or On-Premise Software available to any third party; (e) 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 Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any Service or the Enzoic Technology; (7) interfere in any manner with the operation of any Service or the Enzoic Technology; (8) access or use any Service or the On-Premise Software 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 (9) alter, obscure, or remove any copyright notice, copyright management information, or proprietary legend from any Service or Enzoic Technology.
5. SUPPORT. Enzoic will provide You with support services for the Services and On-Premise Software only as specified in any Subscription Plan subscribed by You. All support services will be subject to the terms of this Agreement. Except as specified in this Agreement, Enzoic is under no obligation to provide to You with any maintenance or support relating to the Services or On-Premise Software.
6. FEES AND PAYMENT. Without offset or deduction, You agree to pay Enzoic the fees and other amounts specified on the Website for the Subscription Plan subscribed by You (“Fees”). All Fees will be charged in arrears in accordance with the billing cycle specified on the Website for the Subscription Plan subscribed by You. Enzoic is not required to invoice You for the Fees. You hereby authorize Enzoic or its agents and Your financial institution to charge any credit card or debit card submitted by You for all Fees payable under this Agreement. Your credit card or debit card will continue to be automatically debited for the Fees payable throughout the term of this Agreement, including any renewal Fees. You acknowledge that your subscribed Subscription Plan will automatically renew, and that You will continue to be charged until you cancel the Subscription Plan or this Agreement is terminated. The expiration or termination of this Agreement will not affect Your obligation to pay all Fees that may have become due before such expiration or termination. 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.
7. OWNERSHIP. Enzoic retains all right, title, and interest in and to the Services and the 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 (“Intellectual Property Rights”). 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.
8.1 Either party may terminate this Agreement upon notice to the other party for any reason or no reason. If You materially breach this Agreement, Enzoic may terminate this Agreement upon notice to You.
8.2 Upon the expiration or termination of this Agreement: (a) all rights and licenses 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 and On-Premise Software; (c) all Fees and other amounts You then owe under this Agreement will become immediately due and payable to Enzoic; and (d) 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, 8.2, 9.1, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, and other Sections necessary to give effect to their intent, will survive the termination or expiration of this Agreement for any reason. Without limiting any right of termination, Enzoic may suspend Your access to the Services and On-Premise Software if reasonably necessary to prevent any damage, injury, or harm to Enzoic, any Enzoic Technology, or any other Enzoic customer or third party, or if you do not timely pay the Fees.
9. REPRESENTATIONS AND WARRANTIES.
9.1 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.
9.2 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 Your subscribed Subscription Plan. 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.
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, ON-PREMISE SOFTWARE, AND SUPPORT SERVICES 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, ON-PREMISE SOFTWARE, OR SUPPORT SERVICES, 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.
11.1 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: (a) Your use of or access to the Services or On-Premise Software, including any results generated through the Services, in a manner inconsistent with this agreement; (b) any Customer Data or any use thereof; (c) Your breach of this Agreement; or (d) 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.
11.2 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 as a result of any claim or allegation made against You alleging that Your use of the Services or On-Premise Software 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’s obligations under the preceding sentence will not apply to any Services or On-Premise Software provided free of charge. If the Service or On-Premise Software becomes, or if Enzoic believes is likely to become, the subject of a claim of infringement or misappropriation, Enzoic may, in its sole discretion, replace or modify the Services or On-Premise Software, procure for You the right to continue using the Services or On-Premise Software under this Agreement, or terminate this Agreement and require You to cease use of the Services and On-Premise Software. 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 On-Premise Software in breach of this Agreement; (b) use of or access to the Services or On-Premise Software other than as specified in any applicable documentation or Subscription Plan; (c) combination, operation, or use of the Services or On-Premise Software with software, hardware, equipment, systems, services, or other technology not provided by Enzoic; or (d) use of the Services or On-Premise Software 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 ON-PREMISE SOFTWARE.
12. 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, ON-PREMISE SOFTWARE, SUPPORT SERVICES 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, ON-PREMISE SOFTWARE, SUPPORT SERVICES, OR THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE GREATER OF (A) THE AMOUNTS PAID TO ENZOIC UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY, OR (B) $100. 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.
13. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means the terms of this Agreement, the Enzoic Technology, and all documentation, information, data, and materials relating to the Services, regardless of the form thereof, including all copies and extracts thereof. 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.
14.1 Customer Data. You are solely responsible for all data, information, and other content provided to Enzoic through any Service or On-Premise Software (“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. You represent and warrant to Enzoic that you own or otherwise have the necessary rights and consents in and relating to the Customer Data so that, as received by Enzoic and used in accordance with this Agreement, such Customer Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, any privacy or other rights of any third party, or violate any applicable law.
14.2 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.
15. 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 Intellectual Property Rights, 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.
16. 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.
17. EXPORT. The Services and On-Premise Software 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.
18. NOTICES. Any notices to Enzoic must be sent to Enzoic, 3800 Arapahoe, Suite 250, Boulder CO 80303 Attn: Legal, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by Enzoic. You hereby consent to receiving electronic communications from Enzoic. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that Enzoic sends to You electronically will satisfy any legal communication requirements, including that such communications be in writing.
19. 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. Subject to Section 15, the federal and state courts located in Denver, Colorado (USA) will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties irrevocably submit to the personal jurisdiction of such courts.
20. MODIFICATIONS. Enzoic may modify the terms of this Agreement and/or any of the Subscription Plans, including the pricing of such Subscription Plans, at any time by posting modified versions at the Website and such changes apply to all access to and use of the Services thereafter. It is Your sole responsibility to check the Website from time to time to view any such changes to this Agreement and/or any of the Subscription Plans, including the pricing of such Subscription Plans. If You continue to use the Services, You signify Your agreement to our revisions to this Agreement and/or any of the Subscription Plans, including the pricing of such Subscription Plans. However, we will notify You of material changes to the terms of this Agreement and/or any of the Subscription Plans, including the pricing of such Subscription Plans, by posting a notice on our homepage and/or sending You notice. For this additional reason, You should keep Your contact and profile information current.
21. FORCE MAJEURE. Enzoic will not be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of Enzoic.
22. GENERAL. This Agreement, including the terms of Your subscribed Subscription Plan, constitutes 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. Notwithstanding anything herein to the contrary, 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. Except as expressly stated in this Agreement, 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. 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.