OEM Services Agreement
1. LICENSE AND SUPPORT. (A) Subject to the terms and conditions set forth in this Agreement, including payment of the Subscription Fees set forth in the Order Form, Recorded Future hereby grants, and Customer hereby accepts, a non-exclusive, non- transferable, right and license, to access and use, solely for providing Customer’s services as identified on the applicable Order Form on a commercial basis to its own third party prospects and customers (“End Users”), (i) the Subscription Service identified on the Order Form (the “Service”), on a hosted basis, in accordance with the user documentation provided with the Service (“Documentation), and (ii) the Documentation, each for the Subscription Term set forth in the applicable Order Form. Use of the Service is restricted and subject to the number of users and other limitations set forth in the Order Form. Customer acknowledges that the Service available to it under this Agreement may differ in several respects from Recorded Future’s general customer or other offerings. All rights not expressly granted to Customer are reserved.
(B) This license does not support other services, internal use, or any other commercialization other than that explicitly referenced herein. License does not support Recorded Future data directly into End User environments (e.g. SIEMs, etc.), or direct End User access of the Services.
(C) The rights granted to Customer hereunder are non-exclusive and nothing under this Agreement shall prohibit Recorded Future from entering into any OEM, MSSP, end-user or other agreement with any other party in any territory or region of the world except as agreed in a written amendment to this Agreement signed by Recorded Future.
2. TERM; RENEWAL; TERMINATION
2.1 Term of Agreement. This Agreement is effective as of the Effective Date set forth in the Order Form and will continue until the services as described in the Order Form and any Statements of Work (“SOW(s)”) or any other applicable Order Forms have been completed, expired or terminated.
2.2 Term and Renewal of Orders. The Subscription Term described in each Order Form will commence upon the Order Form Effective Date and continue as set forth therein (“Initial Term”) and will automatically renew for additional one (1) year terms (each, a “Renewal Term”) unless either party has given the other party written notice of non-renewal at least ninety (90) days prior to the end of an Initial Term or Renewal Term.
2.3 Termination This Agreement and any Service may be terminated if a party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of the breach from the non-breaching party. Upon any termination or expiration of this Agreement, all rights granted to Customer and/or End Users hereunder shall terminate and Customer shall cease all use of the Service and Documentation.
3. FEES; PAYMENT TERMS. In the event Customer purchases directly from Recorded Future Sections 3(A) and (B) shall apply, otherwise if purchasing via a Reseller (as defined herein) Section 3(C) shall apply.
(A) Subscription Fees and any other fees for professional services are specified on the Order Form. Customer agrees to pay any pre- approved reasonable travel and living expenses incurred in connection with the provision of services under a SOW. Unless otherwise set forth on the Order Form or a SOW, all fees will be invoiced upon the Effective Date of the Order Form. Payment terms are Net 30 days from the date of receipt of invoice. Customer shall be responsible for all taxes, duties and similar charges on the fees, except for taxes on Recorded Future’s income. Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month, or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Recorded Future for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
(B) If Customer is not organized under the laws of the United States of America or a state thereof, Customer shall, within five (5) business days of execution of this Agreement by both parties, deliver to Recorded Future an exemption certificate, or such certificates and other evidence Recorded Future may reasonably request to establish that such holder is entitled to receive invoices without deduction or withholding of any United States federal, or applicable state, taxes. Each such holder further agrees (i) promptly to notify Recorded Future of any change of circumstances (including any change in any treaty, law or regulation) which would impact deduction or withholding of such taxes, and (ii) on or before the date that any certificate or other form delivered by such holder under this Section. expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent such certificate or form previously delivered by such holder, to deliver to Recorded Future a new certificate or form, certifying that such holder is entitled to receive invoices without deduction or withholding of such taxes.
(C) Fees and any other fees for professional services are as specified in the applicable Order Form between Customer and the relevant Recorded Future-authorized reseller (“Reseller”). Customer and/or Reseller shall be responsible for all taxes, duties and similar charges on the fees, except for taxes on Recorded Future’s income. To the extent that Reseller does not pay Recorded Future all applicable fees when due for Customer’s access and use of the Service and Documentation, due to Customer’s failure to pay Reseller, such failure shall be deemed a material breach of this Agreement by Customer.
4. RESTRICTIONS; PROPRIETARY RIGHTS. (A) Customer shall not (and shall not allow any third party to): (i) decompile, disassemble, reverse engineer or attempt to deconstruct, identify or discover any source code, underlying ideas or other technology, user interface techniques or algorithms of the Service; (ii) encumber, transfer, distribute, sell, disclose, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or use for the benefit of any third party (including to or for any Customer affiliate or subsidiary), or otherwise use (except as expressly permitted herein) any part of the Service or Documentation (for clarity, Customer may not provide End Users with access to the Service or Documentation, or any raw data); (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service; (v) use the Service or Documentation in the development or marketing of any software, service or other offering that is similar to or competes with any Recorded Future offering; (vi) use the Service or Documentation for Customer’s own internal business purposes (for clarity, this Agreement permits use only to provide Customer’s commercial offering referenced above for the benefit of End Users, and use by Customer for its own benefit would require a direct customer license from Recorded Future); (vii) use any product data as a training set for machine learning or training of AI; (vii) use any robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Service; (ix) interfere with or disrupt the Service or related servers or networks; or (x) use the product in any harmful or unlawful ways, including but not limited to misuse of credit card information or other personal information, violation of any data privacy or computer laws and regulations, or distribution or use in violation of Recorded Future’s Acceptable Use Policy, or any U.S. export controls, economic sanctions, or anticorruption laws or regulations.
(B) All acts and omissions of Customer’s employees and other personnel will be deemed to be those of Customer, and Customer shall be responsible therefor.
(C) Notwithstanding the foregoing restrictions, Customer may during the Subscription Term: (i) prepare derivatives of certain written content or data that is output by the Service, including as part of or resulting from the above-referenced integration into Customer’s offering (subject to Recorded Future’s prior written approval thereof (including for clarity, approval of such integration and offering), in its sole discretion, which may require attribution, among other requirements) (collectively, “Customer Derivatives”) and (ii) provide Customer Derivatives to its End Users as permitted in Section 1 above and subject to written agreements which limit use to only the End User’s own internal business purposes; prohibit sharing, redistribution or otherwise making available to any third party; and include disclaimers, limitations of liability and third party beneficiary provisions for the benefit of Recorded Future (either by name or general reference, such as a “third party licensor or other provider” of Customer). Under no circumstances, shall the Customer redisplay verbatim, or without aggregation, any text, references, data element or any other data directly from Recorded Future’s systems (collectively, “Data Elements”). For the avoidance doubt, Data Elements shall include any element of Recorded Future's risk lists, risk rules, or data originating from the "context" section of Recorded Future's Intelligence Cards delivered via the Service or API. Customer may only utilize Data Elements as an analytic component to produce derivatives that can then be displayed to Customer's customers. However, upon written approval by Recorded Future, Customer may display Data Elements directly to Customer's customers. In addition, under no circumstances will the Customer disclose that Recorded Future is the source data provided to Customer’s customers, and the fact that Recorded Future is the source of any data will be deemed to be Recorded Future’s Confidential Information.
(D) The Service is the proprietary intellectual property of Recorded Future that contains trade secrets and is protected by copyright law. An API license, if available as set forth in the Order Form, authorizes Customer to programmatically access certain Recorded Future data and functionality available as part of the Service hereunder, limited to the specific API type and API credit quota subscribed. Customer is prohibited from reselling or otherwise distributing or disclosing Recorded Future data, delivered directly or as a derived product or service, to any third parties (including End Users). Unless expressly permitted by the applicable Order Form, redistribution or copies of any part of the service is not allowed.
(E) Subject to any license granted hereunder, Recorded Future retains sole and exclusive ownership of all right, title, and interest in and to the Service and any other technology used to provide it. Any and all enhancements, modifications, corrections and derivative works that are made to the Service hereunder will be considered part of the Service for the purposes of this Agreement and will be owned by Recorded Future. Recorded Future shall own all rights, title and interest in any deliverables created by Recorded Future under a SOW or Order Form, but all such deliverables shall be licensed to Customer for use in connection with Customer’s use of the Service hereunder (as if such deliverables were part of the “Service” hereunder). Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s ideas, processes, standards, practices, and management policies and procedures, that is input by Customer into the Service or supplied to Recorded Future (“Customer Data”). Recorded Future may use Customer Data to provide the Service, develop and improve its offerings, and otherwise in its business.
(F) The rights granted to Reseller hereunder are non-exclusive and nothing under this Agreement shall prohibit Recorded Future from entering into any OEM, end-user or other agreement with any other party in any territory or region of the world except as agreed in a written amendment to this Agreement signed by Recorded Future.
5. LOGO; COMMUNICATIONS. Customer agrees to allow the use of its name and logo in a general list of Recorded Future customers and consents to receiving communications regarding product updates, customer support, and marketing initiatives from Recorded Future.
6. CONFIDENTIALITY. Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, subsidiaries, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder and are bound by appropriate confidentiality obligations), copy or use for purposes other than the performance of this Agreement, any information, in any form or format, disclosed by the other party hereunder during the term of this Agreement that is marked as confidential (or similar) or would reasonably be considered confidential, which may include information relating to the other party’s business affairs, trade secrets, technology, research, or development (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Notwithstanding the above requirements, the Service, Documentation, and the terms and conditions of this Agreement, existence of this Agreement and the parties’ relationship hereunder, and the fact that Recorded Future is the source of any data or other information obtained using the Service will be deemed to be Recorded Future’s Confidential Information. Breach of this Section may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek injunctive or other equitable relief, without any requirement to post bond, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such breach. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, subsidiaries, employees, advisors, accountants, attorneys, outsourcers, third party service providers or any other related party. Confidential Information shall not include information that (a) is already known prior to the disclosure by the other party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
Notwithstanding the above, this Section shall not prohibit receiving party from disclosing Confidential Information to the extent required by applicable law, rule or regulation or the rules and regulations of the SEC or any national securities exchange; provided that recipient gives discloser prior written notice, if practicable, and reasonably cooperates with related requests of discloser. Further, notwithstanding the above or anything to the contrary herein, if Customer provides Recorded Future any feedback or suggestions regarding the Service or its other offerings, including potential improvements or changes (collectively, “Feedback”), Feedback shall not be Confidential Information of Customer, and Recorded Future shall be free to use and otherwise exploit in any manner Feedback for any purpose. Upon expiration or termination of this Agreement, recipient shall promptly return or destroy Confidential Information; provided that, it may retain a copy to track its related rights or obligations hereunder, and may retain Confidential Information to the extent reasonably necessary for its surviving rights or obligations hereunder. Notwithstanding the foregoing return and destruction obligations, the recipient may retain copies of Confidential Information, subject to the terms and conditions set forth in this Agreement, to the extent: (i) required to be retained by applicable law, regulation and/or audit requirements; or (ii) created in the ordinary course of business pursuant to the recipient's standard policies with respect automated archiving or back-up procedures, so long as such copies cannot be deleted using commercially reasonable efforts.
7. LIMITED WARRANTY. (A) Recorded Future represents and warrants that the Service will substantially conform to the Documentation during the Warranty Period, which shall mean the Initial Term and any Renewal Term. If Customer notifies Recorded Future in writing of a nonconformity of Service during the Warranty Period, Recorded Future will, at its option and expense, (i) correct any nonconformities in the Service that cause the Service to fail to substantially conform to the Documentation, or (ii) provide to Customer a pro rata refund of any prepaid but unutilized Subscription Fees applicable to the non-conforming Service (in which case, Recorded Future may also terminate this Agreement with respect to such Service by written notice to Customer). The limited warranty set forth in this Section shall be void if the Service nonconformity is caused by (a) the use or operation of the Service with an application or in an environment other than that recommended in writing by Recorded Future, (b) modifications to or customizations of the Service without the express written authorization of Recorded Future, (c) accident, disaster or Force Majeure Event, (d) misuse, fault or negligence of or by Customer, (e) use of the Service in a manner for which it was not designed, or (f) causes external to the Service such as, but not limited to, power failure or electrical power surges.
(B) THE WARRANTY AND REMEDIES SET FORTH IN THIS SECTION 7 REPRESENT RECORDED FUTURE’S SOLE WARRANTY AND CUSTOMER’S SOLE REMEDY IN THE EVENT OF BREACH OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, RECORDED FUTURE MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES (I) OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; OR (II) AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
8. LIMITATION OF LIABILITY. THE CUMULATIVE AGGREGATE LIABILITY OF RECORDED FUTURE FOR ALL DAMAGES ARISING FROM OR RELATING TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO RECORDED FUTURE UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL RECORDED FUTURE OR ITS LICENSORS OR OTHER PROVIDERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THE SERVICE OR THIS AGREEMENT, EVEN IF RECORDED FUTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, ALL INFORMATION PROVIDED BY THE SERVICE IS PROVIDED “AS-IS” AND RECORDED FUTURE SHALL NOT BE LIABLE FOR, AND CUSTOMER ASSUMES ALL RISK OF, DAMAGES OF ANY KIND ARISING FROM OR RELATING TO CUSTOMER’S USE THEREOF, INCLUDING ANY RELIANCE THEREON.
9. INDEMNIFICATION. (A) If a third party claims that the Subscription Service infringes any U.S. patent, copyright, or trade secret, Recorded Future will defend Customer against such claim at Recorded Future’s expense and pay all damages finally awarded through judgment or settlement, provided that Customer promptly notifies Recorded Future in writing of the claim, allows Recorded Future sole control of the defense and/or settlement, and cooperates with Recorded Future in, the defense or settlement of such action. If such a claim is made or appears possible, Recorded Future may, at its option, secure for Customer the right to continue to use the Subscription Service, modify or replace the Subscription Service so that it is non-infringing, or, if neither of the foregoing options is available in Recorded Future’s reasonable opinion, terminate this Agreement and refund to Customer any unamortized pre-paid fees for use of the Subscription Service. Recorded Future shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused by (i) compliance with Customer’s instructions, designs, guidelines, plans or specifications; (ii) Customer’s use of the Subscription Service other than as specified in the applicable Documentation; (iii) modification of the Subscription Service by any person other than as authorized in writing by Recorded Future; or (iv) the combination, operation or use of the Subscription Service with any other product, service, data or other technology not supplied by Recorded Future, where the Subscription Service would not by itself be infringing. THIS CLAUSE STATES RECORDED FUTURE’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
(B) Customer will indemnify and hold harmless Recorded Future, its affiliates, and their respective officers, directors, employees, agents, licensors and other providers, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs and expenses, including attorneys’ fees (collectively, “Liabilities”) arising from or relating to Customer’s breach of this Agreement, or Customer’s use of the Service (but excluding any Liabilities to the extent caused by Recorded Future’s gross negligence or willful misconduct). Recorded Future reserves the right to assume the sole control of the defense and settlement of any claim, action, proceeding or suit for which Customer is obliged to indemnify Recorded Future. Customer will cooperate with Recorded Future with respect to such defense and settlement.
(C) Customer will not provide any warranties or representations on behalf of Recorded Future that would entitle an End User or third party to assert any rights or demand any remedies from Recorded Future, regarding its use of or interest in the Services and will indemnify
Recorded Future against any claim, demand, action, proceeding, investigation, loss, liability, cost and expense (including legal fees) suffered or incurred by Recorded Future and arising out of or related to any violation, whether intentional or unintentional, of this warranty.
10. INSURANCE. During the Term of this Agreement, Recorded Future shall, at its expense, at a minimum, maintain the following insurance coverage on a primary basis with the limits of liability indicated:
All such insurance shall be with insurers who are rated "A- VII” or better by the A.M. Best Company. Upon Customer’s request, certificates of insurance for the above will be submitted to Customer. Recorded Future will be responsible for deductibles on any insurance policies referenced as part of this Agreement. Recorded Future will provide at least thirty (30) days prior notice to Customer of any termination or material detrimental modification of such coverage.
11. GENERAL.
11.1 Entire Agreement; Amendment. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If these Terms and Conditions conflict with any of the terms or conditions of any Order Form or Statement of Work, then, unless otherwise provided herein, the terms and conditions of such Order Form or Statement of Work will control solely with respect to the Services covered by such Order Form or Statement of Work. Any purchase orders issued by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of such orders by Recorded Future, shall in no way change, override, or supplement this Agreement. This Agreement may be amended or modified only by an express written agreement signed by duly authorized representatives of both parties.
11.2 Waiver. Any waiver of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.
11.3 Independent Contractor. Recorded Future is an independent contractor and not an employee of Customer. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venturer, employer or employee of the other party.
11.4 Notices. All notices or other communications required to be given hereunder shall be in writing and may be delivered by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to the address first listed above. Notices shall be effective upon their receipt by the party to whom they are addressed.
11.5 Non-Party Requests. If Recorded Future or its affiliates are required by applicable law, rule or regulation to conduct electronic legal discovery, or produce information or personnel as witnesses with respect to Customer’s use of the Service or this Agreement, Customer shall reimburse Recorded Future and its affiliates for their reasonable costs and expenses incurred to respond to such requests, unless Recorded Future is a party to the proceeding or the subject of the investigation.
11.6 Assignment. Neither this Agreement, nor any rights or obligations hereunder, may be assigned, otherwise transferred or delegated by Customer without Recorded Future’s prior written consent.
11.7 Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection of data privacy, and proper use of financial and personally identifiable information. Customer is responsible for knowing and understanding government export and re- exports restrictions, updates, revisions, and supplements thereto, applicable to the Services, prior to the provision, export or re-export of such Services to End Users.
11.8 Record Keeping and Audits. During the term of this Agreement and for three (3) years thereafter: (a) Customer agrees to maintain reasonable records of its activities hereunder, including records of the number and identity of all End Users and the details of Customer’s use of the Service or Documentation; and (b) Recorded Future may audit (via internal or external auditors) such records to confirm Customer’s compliance with this Agreement, including any limitations on End Users. Each such review shall be conducted at Recorded Future’s expense, unless the audit reveals non-compliance with this Agreement, in which case Customer shall be responsible for such expense. Notwithstanding the foregoing, Customer will provide monthly reports to Recorded Future detailing usage of the data.
11.9 Force Majeure. Neither party will be responsible for any failure to perform (except for failure to make any payment due hereunder) due to causes beyond its reasonable control, including acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”) provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
11.10 Governing Law and Disputes. This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles, and shall be subject to the jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts, and each party consents to the personal jurisdiction and venue of such courts.
11.11 Non-Solicitation. Neither party shall directly or indirectly solicit, employ or engage any employee of the other party with whom the non-employing party came into contact through the performance of this Agreement during the period such employee was engaged in the performance of this Agreement and for one (1) year after such engagement. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement. For purposes of the foregoing solicit shall not be deemed to mean: (a) circumstances where an employee of a party initiates contact with the other party with regard to possible employment; or (b) general solicitations of employment not specifically targeted at employees of a party, including responses to general advertisements.
11.12 Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.
11.13 Counterparts. This Agreement may be executed in counterparts (which may be delivered by .pdf or other facsimile format acceptable to the parties), each of which shall be an original and all of which taken together shall form one agreement.
11.14 Survival. Any obligations that have accrued prior to termination or expiration, and the following provisions of this Agreement, shall survive any termination or expiration hereof: Sections 2.3, 3, 4, 6, 7(B), 8, 9 and 11.