Service Provider Terms
- “Acceptable Use Policy” means Recorded Future’s policies for acceptable use as stated in Section 10.11 herein;
- “Analysis” means a single environment sandbox execution of a sample for a single operating system. In the event a single sample is executed in multiple environments simultaneously, each will count as a single Analysis for licensing purposes;
- “API” means an Application Program Interface, and generally refers to Recorded Future’s API, which allows other applications to automate communications with the Recorded Future Service;
- “Confidential Information” means any information, in any form or format, disclosed by a party to 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 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.
Further, the Service, Output and Documentation will be deemed to be Recorded Future’s Confidential Information;
- “Customer” and/or “You” means you, a user of the Service, and to the extent you are using the Service on behalf of an organization, such organization;
- “Customer Data” means Customer’s own information and data that is input by Customer into the Service or otherwise supplied by Customer to Recorded Future hereunder;
- “Customer Derivatives” means derivatives of certain written Output, including as part of or resulting from the offering referenced on the applicable Order Form and/or Quote into Customer’s offering;
- “Data Elements” means collectively the Output, text, references, data element or any other data directly from Recorded Future’s systems. 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 its associated API;
- “Documentation” means any related user documentation that Recorded Future provides as part of the Services including as available via the Recorded Future Support Center;
- “Effective Date” means the beginning of the Initial or Renewal Term as stated on the relevant Order Form, or other applicable ordering document;
- “Feedback” means any feedback or suggestions regarding the Service or Recorded Future’s other current or future offerings, including potential improvements or changes;
- “Force Majeure Event” means causes beyond a party’s reasonable control, including acts of God, pandemics, epidemics, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes;
- “Hatching” means either Hatching International B.V. or Hatching B.V as applicable;
- “Initial Term” means the initial subscription term as described in each Order Form, or other applicable document;
- “Liabilities” means collectively claims, actions, proceedings, suits, liabilities, losses, damages, costs and expenses, including attorneys’ fees;
- “Named User” means the SP named individual that has access to the particular user license(s) as outlined within the Agreement;
- “Order Form” means the ordering document, as entered into between Customer and Recorded Future and/or Reseller;
- “Other Agreement” means any separate agreement regarding such access and use that is between Customer and either (i) Recorded Future (or its affiliates) or (ii) one of Recorded Future’s Resellers;
- “Output” means collectively any output, data and reports generated from the Service;
- “Personnel” means a party’s, and its affiliates’ and subsidiaries’, employees, advisors, accountants, attorneys, outsources, third party service providers or any other related party;
- “Purpose” means providing Customer’s services as identified on the applicable Order Form on a commercial basis to its own SP End Users;
- “Recorded Future” means, except as otherwise explicitly stated, individually and collectively, Recorded Future, Inc., or its applicable affiliates (including, without limitation, SecurityTrails, LLC, Hatching International B.V., or Gemini Advisory LLC);
- “Representatives” means collectively a party’s employees, accountants, attorneys, advisors, affiliates, subsidiaries, outsourcers and third party service providers with a need to know in connection with its performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder and are bound by appropriate confidentiality obligations;
- “Renewal Term” means any subscription terms subsequent to the Initial Term;
- “Reseller” means the relevant Recorded Future-authorized reseller;
- “Rules” means the Rules of Arbitration of the International Chamber of Commerce;
- “Service” means the offerings, products, and services available on or through website of Recorded Future, Inc., or its applicable affiliates (including without limitation, SecurityTrails, LLC, Hatching International B.V., or Gemini Advisory LLC);
- “Service Provider” or “SP” means the service provider, managed service security provider (MSSP), or partner Customer of Recorded Future;
- “SP End User” means the SP’s third-party customers or prospects that Customer provides services to on a commercial basis in accordance with the Agreement;
- “Telemetry Data” means telemetry data, or other associated information, as generated by SP End Users or Service Provider, and provided to Recorded Future by Customer;
- “Term” means collectively the Initial Term and any Renewal Terms;
- “Triage” means the offerings available via the website tria.ge, its successor websites, and other Hatching owned and/or operated websites with the Triage branding;
- “Warranty Exclusions” means collectively (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;
- “White Label” means a license to incorporate certain Recorded Future Output into Customer’s commercial offering on an unattributable basis, where the fact that Recorded Future is the source of any such data is deemed Recorded Future’s Confidential Information and subject to the confidentiality obligations herein.
RECORDED FUTURE ENTITY
The Recorded Future entity with which Customer is entering into this Agreement is determined by Customer’s location, as follows:
|Location of Customer
|Recorded Future Entities
|Recorded Future, Inc.
|Recorded Future Technologies Limited
|Recorded Future UK Limited
|Recorded Future Japan KK
|APAC Region (excl. Japan)
|Recorded Future Pte Ltd
|EFTA and Switzerland (excl. France and Germany)
|Recorded Future AB
|Recorded Future SAS
|Recorded Future GmbH
|Recorded Future Middle East
|Recorded Future India Private Limited
|All Other Locations
|Recorded Future entity stated on the ordering document, or if none, Recorded Future, Inc.
By indicating acceptance of this Agreement, or by otherwise using the Service, or the Recorded Future website, you are entering into a legally binding agreement with the relevant Recorded Future entity (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Service on behalf of an organization, you represent that you have the right and authority to bind such organization to this Agreement, and for clarity, the terms “Customer” and “you” will include both you, the individual user, and such organization. If you do not agree to be bound by these terms and conditions, you must not use the Service or the Recorded Future website.
Recorded Future offers, and the Service may include, both paid services and services which are free of charge. You agree your purchase and/or use of the Service is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Recorded Future or any of its affiliates regarding future functionality or features. You acknowledge and agree that the form and nature of the offerings which Recorded Future provides may change from time to time without prior notice to you. Changes to the form and nature of such offerings will be effective with respect to all versions of the Service. Any new features that may be added to Recorded Future’s websites, or the Service from time to time will be subject to this Agreement, unless explicitly stated otherwise.
CERTAIN FEATURES OF THE SERVICES OR SITES MAY BE SUBJECT TO ADDITIONAL GUIDELINES, TERMS, OR RULES, WHICH WILL BE POSTED ON THE SERVICE OR SITES IN CONNECTION WITH SUCH FEATURES. TO THE EXTENT SUCH TERMS, GUIDELINES, AND RULES CONFLICT WITH THIS AGREEMENT, SUCH TERMS SHALL GOVERN SOLELY WITH RESPECT TO SUCH FEATURES. IN ALL OTHER SITUATIONS, THIS AGREEMENT SHALL GOVERN.
1. SCOPE OF USE; LICENSE; OTHER AGREEMENTS. (A) Subject to the terms and conditions set forth in this Agreement, including payment of any relevant fees and provision of Telemetry Data (to the extent listed on applicable 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 SP End Users, the Service as identified on the Order Form on a hosted basis, in accordance with the Documentation, for the Term set forth in the applicable 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 except those listed on the Order Form. Internal use, or any other commercialization other than that explicitly referenced on the Order Form or herein is expressly prohibited. License does not support the export, integration, or use of Output directly into SP End User environments (e.g. SIEMs, etc.), or direct SP End User access of the Service.
(C) Such access and use of the Service is also restricted by and subject to further conditions in any Order Form(s) and/or Other Agreement, including any subscription fee(s), subscription term, scope of use, or other limitations, restrictions or obligations applicable to Customer therein. These restrictions may include, but are not limited to, geographic restrictions, or a set number of SP End Users or daily Analyses, in the event the applicable Order Form states limits on the number of Analyses or SP End Users.
(D) The rights granted to Customer hereunder are non-exclusive and nothing under this Agreement shall prohibit Recorded Future from entering into any original equipment manufacturer, service provider, 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.
(E) An API license, if available as set forth in an Order Form between Customer and Recorded Future (or its affiliates), authorizes Customer to programmatically access certain Recorded Future Output and functionality available as part of the Service hereunder, limited to the specific API type and API credit quota subscribed. Except for API access, Customer’s access and use of the Service shall be via a password-protected URL designated by Recorded Future. Customer is responsible for how it accesses such URL. Each Customer user login/password for the Service is limited to use by a single named individual, cannot be shared with others, and can be used only on a single device or other login point at any time (i.e., no multiple simultaneous logins). All acts and omissions of Customer’s Personnel, and other related parties will be deemed to be those of Customer, and Customer shall be responsible therefor. Further, Customer shall be responsible for any activity conducted through the use of any user credential assigned to Customer.
(F) All licensed users will be required to enable two-factor authentication via a request to support [at] recordedfuture [dot] com before commencing use of the Services.
2. SUSPENSION AND TERMINATION. (A) To the extent Customer materially breaches this Agreement, Order Form or any Other Agreement, or Recorded Future believes in good faith that Customer has done so or that Customer’s continued access and use of the Service poses a threat to Recorded Future or any third party, Recorded Future may, with or without notice to Customer, suspend or terminate Customer’s access and use of the Service or this Agreement. Following any termination of this Agreement, Customer agrees that it shall continue to be bound by this Agreement. For clarity, Customer’s access and use of the Service may require an active subscription as set forth in an Order Form, including payment of relevant fees by or on behalf of the Customer, and in the absence of such an active subscription in good standing, Recorded Future may in its discretion suspend or terminate any or all access or use of the Service.
(B) For paid subscriptions, the Initial Term will commence upon the Effective Date and continue as set forth within the Order Form. Such Initial Term will automatically renew for additional one (1) year Renewal Terms 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, or as otherwise terminated in accordance with this Section 2.
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 party claiming breach.
(C) Upon any termination or expiration of this Agreement, all rights granted to Customer hereunder shall terminate and Customer shall cease all use of the Service and Documentation. Further, to the extent that Customer has any copies or back-ups of the Service and/or associated software under its control, it shall delete and destroy all such copies and back-ups.
(D) To the extent that Customer is using any free Service, Customer agrees that Recorded Future, in its sole discretion and for any or no reason, may terminate this free Service at any time. Customer agrees that any such termination of access to the free Service may be without prior notice, and that Recorded Future will not be liable to Customer or any third party for such termination. Customer may terminate Customer’s use of the free Service at any time by discontinuing use of the free Service.
(E) Customer acknowledges and agrees that Customer is solely responsible for retaining backup copies of Customer Data at all times; Recorded Future will not provide Customer with an export of Customer Data, upon and/or after termination of the Service.
3. LICENSE RESTRICTIONS. (A) Customer shall not (and shall not allow any third party to): (i) except as expressly permitted by applicable law, 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) except SP End Users as stated herein, or otherwise use (except as expressly permitted herein) any part of the Service, Output, or Documentation, or any part of the Service’s source code or binary distribution(s); (iii) copy, modify, adapt, translate, incorporate into or with other software, or, excluding permitted Customer Derivatives, create a derivative work of any part of the Service, Output, or Documentation; (iv) attempt to circumvent any fees, 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 any product data as a training set for machine learning or training of artificial intelligence; (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; (viii) perform, or publish or otherwise disclose the results of, any benchmarking, availability or performance testing or analyses of the Service or Customer’s use thereof; (ix) attempt to gain unauthorized access to, interfere with or disrupt the Service or related servers or networks (including via a denial-of-service attack); (x) publicize any Output or make Output publicly available in any way; (xi) use or transmit to anyone for use of the Service or any Output to evaluate, score, or report on the creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of any consumer or applicant for employment, or any other use subject to state, federal, and/or otherwise applicable credit reporting laws; (xii) use, transmit, sell, or license to anyone for use of the Services or any Output for marketing, advertising (including targeting for the same), loyalty programs, customer selection, acquisition, or retention, or similar purposes; (xiii) use the Service, Output, or Documentation in any harmful, malicious, 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, other violation of any Recorded Future or third party rights (including intellectual property or privacy rights), or distribution or use in violation of Recorded Future’s Acceptable Use Policy, or any U.S., or otherwise applicable, export controls, economic sanctions, or anti-corruption laws or regulations; or (xiv) use the Service, Output or Documentation for Customer’s own internal business purposes (for clarity, this Agreement permits use only to provide Customer’s commercial offering referenced on the applicable Order Form for the benefit of SP End Users, and use by Customer for its own internal security would require a separate internal use license from Recorded Future).
(B) Customer is prohibited from reselling or otherwise distributing or disclosing Recorded Future Output, delivered directly or as a derived product or service, to any third parties except for limited disclosure to Customer’s Representatives solely in connection with the Purpose or distribution of the Customer Derivatives as permitted herein. Unless expressly permitted by an applicable Order Form or Other Agreement between Customer and Recorded Future (or its affiliates), redistribution, transfer, resale, or license or copies of any part of the Service, Output, or any data accessed, provided, or otherwise included by, in or through the Service, is not allowed.
(C) Recorded Future has the right to refuse access to the Services in the event this Agreement is violated. Nothing contained herein, in any Recorded Future offering, or otherwise made available by Recorded Future should be construed as granting, by implication, estoppel, or otherwise any license or right to use any intellectual property, except as explicitly agreed upon by the parties.
(D) For clarity, Customer may not provide SP End Users with direct access to the Service (including via the API, Recorded Future Platform, or otherwise), Output, or Documentation, or components thereof. Further, except to the extent stated on the Order Form, Customer may not use the Service or Output in conjunction with any a) continuous monitoring, or b) external threat altering on behalf of Customer or any SP End User(s).
4. PROPRIETARY RIGHTS. (A) The Service is the proprietary intellectual property of Recorded Future that contains trade secrets and is protected by copyright law. 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 shall be owned by Recorded Future. Further, all Analysis Results (or parts thereof) generated via the Service are protected intellectual property of Recorded Future. Recorded Future shall own all rights, title and interest in any deliverables created by Recorded Future and provided to Customer, and all such deliverables shall be subject to all Customer restrictions and obligations set forth herein, in an applicable ordering document, or Other Agreement (as if such deliverables were part of the Service hereunder).
(B) Notwithstanding the foregoing, Customer retains all rights, title and interest in and to Customer Data. The Customer hereby grants to Recorded Future a non-exclusive, royalty-free, sublicensable, perpetual, irrevocable, assignable right and license to use the Customer Data anywhere in the world to provide the Service, develop and improve its offerings, and otherwise in its business as it determines in its discretion. Customer is responsible for Customer Data, including the means by which it is provided, and Customer shall be responsible for ensuring that Customer Data does not violate intellectual property rights, or is not otherwise prohibited.
(C) Customer acknowledges that Customer Data submitted to Hatching, or malware sandbox, may be analyzed, and the Analysis Results shared publicly, or with other third parties, as part of providing the service. Neither Recorded Future nor Hatching shall be responsible for the content or information which may incidentally appear in such submissions or be included in automatically-generated reports.
(D) In the event that Customer is obligated to provide Telemetry Data, Customer hereby grants Recorded Future a perpetual, irrevocable, royalty-free, fully-paid license to this data, including the right to sub-license through multiple tiers, to commercialize and otherwise exploit the derived data and analytics. Recorded Future’s rights above shall survive termination or expiration of this Agreement.
Customer hereby represents and warrants that it has and will have sufficient rights in the Telemetry Data, including any required consents from its SP End Users, to provide the data to Recorded Future and grant Recorded Future the rights above. Customer’s indemnification obligations herein of the Agreement will also extend to any Liabilities arising from or relating to Customer’s breach of the above representation and warranty, or provision of Telemetry Data to Recorded Future hereunder.
(E) Notwithstanding the foregoing restrictions, Customer may during the Term: (i) prepare Customer Derivatives 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; and (ii) provide Customer Derivatives to its SP End Users as permitted herein and subject to written agreements which limit use to only the SP 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).
Customer shall not, unless Recorded Future provides its express written permission, redisplay verbatim, or without aggregation, any Recorded Future Data Elements. Customer may only utilize Data Elements as an analytic component to produce approved Customer Derivatives that can then be displayed to Customer's SP End Users.
(F) If the license hereunder is designated as a White-Label, under no circumstances will the Customer disclose that Recorded Future is the source of the data provided to Customer’s SP End Users hereunder, and the fact that Recorded Future is the source of any such data will be deemed to be Recorded Future’s Confidential Information.
(G) In the absence of a White-Label designation, Customer shall ensure that there is adequate and appropriate attribution made to Recorded Future for any use of the Service, Output, or Recorded Future’s offerings hereunder.
(H) If permitted, by explicit written permission, to use Recorded Future’s name or marks, all Customer use of such, must be in accordance with any trademark guidelines or other requirements of Recorded Future.
5. LOGO AND COMMUNICATIONS. (A) Customer agrees to allow the use of its name and logo in a general list of Recorded Future customers.
(B) Customer consents to receiving communications regarding product updates, customer support, and marketing initiatives from Recorded Future. Notwithstanding the foregoing, Customer has the right to withdraw its consent to receive such commercial electronic messages at any point in time by sending an email to Recorded Future at unsubscribe [at] recordedfuture [dot] com or by clicking the unsubscribe link at the bottom of any electronic message sent by Recorded Future to Customer.
You acknowledge and agree that notwithstanding your withdrawal of such consent, Recorded Future shall still be permitted to send you commercial electronic messages specific to our relationship and the Services provided under this Agreement.
6. CONFIDENTIALITY. Each party shall maintain as confidential and shall not disclose (except to its Personnel 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, 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.
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, outsources, third party service providers or any other related party.
Notwithstanding the above, this Section shall not prohibit recipient from disclosing Confidential Information to the extent required by applicable law, rule or regulation or the rules and regulations of the United States Securities and Exchange Commission, or any national securities exchange; provided that recipient gives discloser prior written notice, if practicable, and reasonably cooperates with related requests of discloser.
Upon expiration or termination of this Agreement, recipient shall promptly return or destroy Confidential Information; provided that, it may retain (i) Confidential Information to the extent reasonably necessary for its surviving rights or obligations hereunder, or as required to be retained by applicable law, regulation and/or audit requirements; and (ii) backup or archival copies created and maintained in the ordinary course of business pursuant to the recipient's standard policies with respect automated archiving or back-up procedures, so long as in each case (i) and (ii), for clarity, such retained information remains subject to the confidentiality obligations herein.
Further, notwithstanding anything to the contrary herein, if Customer provides Recorded Future (or its affiliates or resellers) Feedback, Recorded Future shall be free to use, disclose and otherwise exploit in any manner such Feedback for any purpose, without any obligation of confidentiality with respect thereto. Further, Customer acknowledges and agrees that by providing such Feedback to Recorded Future, Customer hereby grants to Recorded Future an irrevocable, non-exclusive, royalty-free, sublicensable, perpetual, assignable right and license to use such Feedback in whatever way, manner, form or media, now known or hereafter discovered, and for whatever purpose Recorded Future determines in its sole discretion, anywhere in the world.
7. WARRANTY AND DISCLAIMER. (A) Recorded Future represents and warrants that the Service will substantially conform to the Documentation during the Term. If Customer notifies Recorded Future in writing of a nonconformity of Service during the Term, 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 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 the Warranty Exclusions.
(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, THE SERVICE IS ACCESSED AND USED BY CUSTOMER HEREUNDER “AS AVAILABLE” AND “AS-IS.” TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EXCEPT AS EXPLICITLY STATED HEREIN, RECORDED FUTURE AND ITS AFFILIATES HEREUNDER MAKE NO AND DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES (I) OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (II) THAT USE OF THE SERVICE WILL MEET CUSTOMER’S, OR ANY OTHER PARTY’S CURRENT AND/OR FUTURE REQUIREMENTS; OR (III) AS TO THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELIABILITY OF ANY OUTPUT OR OTHER INFORMATION OBTAINED FROM THE SERVICE.
(C) FURTHER, CUSTOMER ACKNOWLEDGES THAT RECORDED FUTURE MAY NOT DETECT ANY MALICIOUS BEHAVIOR FOR MATERIALS THAT ARE SUBMITTED FOR ANY MALWARE SANDBOX.
8. LIMITATION OF LIABILITY. (A) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE CUMULATIVE AGGREGATE LIABILITY OF RECORDED FUTURE AND ITS AFFILIATES, FOR ALL DAMAGES ARISING OUT OF 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 (OR ITS AFFILIATES) BY CUSTOMER, IF ANY, UNDER AN APPLICABLE OTHER AGREEMENT BETWEEN RECORDED FUTURE (OR ITS AFFILIATES) AND CUSTOMER (OR, IF THE APPLICABLE OTHER AGREEMENT IS INSTEAD BETWEEN A RECORDED FUTURE RESELLER AND CUSTOMER, THEN THE TOTAL AMOUNT OF FEES PAID TO RECORDED FUTURE BY SUCH RESELLER FOR CUSTOMER’S USE OF THE SERVICE) WITHIN THE YEAR PRECEDING THE CLAIM.
(B) NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL RECORDED FUTURE OR ITS AFFILIATES, LICENSORS OR OTHER PROVIDERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING SYSTEM FAILURE, OR CIVIL OR CRIMINAL FINES OR SANCTIONS) ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT, EVEN IF RECORDED FUTURE (OR ANY OF ITS AFFILIATES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(C) FURTHERMORE, ALL OUTPUT AND INFORMATION PROVIDED BY THE SERVICE IS PROVIDED “AS-IS” AND RECORDED FUTURE (AND ITS AFFILIATES) SHALL NOT BE LIABLE FOR, AND CUSTOMER ASSUMES ALL RISK OF, DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO CUSTOMER’S USE THEREOF, INCLUDING ANY RELIANCE THEREON.
(D) YOU ACKNOWLEDGE THAT BY USING THE SERVICE, YOU MAY BE EXPOSED TO MATERIALS THAT ARE OFFENSIVE, INDECENT AND/OR OBJECTIONABLE, AND UNDER NO CIRCUMSTANCES SHALL RECORDED FUTURE, OR ITS AFFILIATES, BE LIABLE FOR SUCH CONTENT. FURTHERMORE, RECORDED FUTURE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL, OR THAT OF ANY PARTIES AFFECTED BY YOUR ACTIONS DUE TO YOUR ACCESS TO OR USE OF THE SERVICE OR CONTENT OR ANY THIRD PARTY CONTENT OR WEBSITES. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL RECORDED FUTURE, OR ITS AFFILIATES BE LIABLE FOR DEFAMATION, LIBEL, OR ANY SIMILAR CLAIM AS A RESULT OF THE CONTENT OR ALERTS GENERATED BY THE SERVICES.
SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER DEPENDING ON THEIR JURISDICTION.
(E) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE STATUTE OF LIMITATIONS REGARDING ANY CLAIM FROM CUSTOMER SHALL BE LIMITED TO ONE YEAR COMMENCING FROM THE BEGINNING OF THE STATUTORY LIMITATION PERIOD.
9. INDEMNIFICATION. (A) If a third party claims that the 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 Service, modify or replace the Service so that it is non-infringing, or, if neither of the foregoing options is available in Recorded Future’s reasonable opinion, provide to Customer a pro rata refund of any prepaid but unutilized 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).
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 Service other than as specified in the applicable Documentation; (iii) modification of the Service by any person other than as authorized in writing by Recorded Future; or (iv) the combination, operation or use of the Service with any other product, service, data or other technology not supplied by Recorded Future, where the Service would not by itself be infringing. THIS SECTION 8(A) STATES RECORDED FUTURE’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
(B) Customer will not provide any warranties or representations on behalf of Recorded Future that would entitle an SP End User or any other 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 Liabilities suffered or incurred by Recorded Future and arising out of or related to any violation, whether intentional or unintentional, of this warranty.
(C) Customer acknowledges and agrees it shall remain solely liable to an SP End User for interruption or cessation of service should Licensee not renew any subscription hereunder at the end of the SP End User subscription term contained in the applicable Order Form.
(D) 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 Liabilities arising out of or relating to (i) Customer’s breach of this Agreement, (ii) Customer Data, (iii) Customer’s violation of applicable laws, rules or regulations; (iv) Telemetry Data (if any), or (v) Customer’s use of the Service. 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 or its affiliates. Customer will cooperate with Recorded Future with respect to such defense and settlement.
10.1 Entire Agreement; Modification of Agreement. This Agreement, including all Order Forms and statements of work as entered into by Customer and Recorded Future pursuant hereto, 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 (provided that, for clarity, it does not supersede any applicable Other Agreement). If any provision of this Agreement conflicts with any provision of any Other Agreement, then, unless otherwise provided herein, this Agreement shall control.
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.
Customer agrees that the electronic text of this Agreement constitutes a writing and its assent to the terms and conditions hereof constitutes a “signing” for all purposes. Recorded Future may from time to time amend this Agreement prospectively. If it does so, it will endeavor to notify Customer and will post the revised agreement on the Service or its website(s). Customer agrees that its continued access or use of the Service constitutes its agreement to the amended Agreement. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by Recorded Future.
10.2 Waiver. Any waiver of the provisions of this Agreement will be effective only if in writing and signed by Recorded Future. 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 Recorded Future or Recorded Future’s delay in exercising its rights shall not constitute a waiver of any other provision, breach or default.
10.3 Independent Contractor. Recorded Future and its affiliates are independent contractors and not employees of Customer. At no time shall Customer make any commitments or incur any charges or expenses for or in the name of Recorded Future (or its affiliates), or be considered the agent, partner, joint venturer, employer or employee of Recorded Future (or its affiliates).
10.4 Notices. All notices or other communications required to be given hereunder shall be in writing and may be delivered by certified mail, return receipt requested, postage prepaid; by nationally recognized overnight courier; or as otherwise requested by the receiving party. Notices to the applicable Recorded Future affiliate should be sent to it at 363 Highland Avenue, Somerville, Massachusetts 02144 (which address Recorded Future may update by notice to Customer) with a copy to notices [at] recordedfuture [dot] com. Notices to Customer may be sent to any address or other contact point (including email) that Customer may provide to Recorded Future or its affiliates or Resellers.
10.5 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.
10.6 Compliance with Laws. Customer will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S., or other federal, state, and local laws, all applicable export laws and those laws related to the protection of data privacy, and proper use of financial and personally identifiable information.
Without limiting the foregoing or any other Customer restrictions or obligations herein, Customer represents and warrants that, during the term of this Agreement: (A) it (i) will not engage, directly or indirectly, in activities prohibited by U.S., or other applicable, export control regulations, or regulated by the International Traffic in Arms Regulations (or local equivalent legislation or regulations) without the proper authorizations, including (a) the design or development of defense articles, (b) the provision of defense services, or (c) the development of nuclear facilities not licensed by the U.S., or other applicable, Government; chemical, biological, or nuclear weapons; or rocket, missile or unmanned aircraft systems, or (d) terrorist activities; (ii) is not a resident or organized under the laws of Cuba, Crimea, Iran, North Korea, Syria, or Sudan, or any other location prohibited by U.S., or other applicable, law; and (iii) is not, and is not owned or controlled by, a person or entity that is the subject of any sanctions administered or enforced by any relevant sanctions authority, including the Office of Foreign Assets Control of the U.S. Department of Treasury; and (B) it will not provide any information received from the Service to, or otherwise use the Service for the benefit of, any person or entity, the identity or activity of which would violate any of clauses (A)(i)-(A)(iii) above.
Further, Customer understands that the Service may contain malware, or other malicious content, Customer agrees not to use any such malware for malicious or unlawful purposes. Customer represents that it possesses the requisite skills to safely handle such content.
In the event Customer becomes aware, or reasonably suspects that any person or entity is using any Recorded Future offering for unlawful or malicious purposes, or to harm the integrity, security, or performance of such offerings, or is otherwise in violation of this Agreement, it shall immediately notify Recorded Future via support [at] recordedfuture [dot] com.
10.7 Force Majeure. Neither Recorded Future nor any of its affiliates will be responsible for any act or omission (including any failure, interruption or delay in the operation of the Service) due to a Force Majeure Event.
10.8 Governing Law and Disputes. (A) Choice of Law. This Agreement and any dispute arising out of or relating to this Agreement shall be governed by and interpreted and construed in accordance with the laws of the jurisdiction as shown in the table below. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby excluded.
|Location of Customer
|Place of Arbitration
|England and Wales
|All Other Locations
(B) Default Approach for Disputes. Except to the extent a Customer dispute is covered by Section 10.8(C) below, Customer hereby consents to jurisdiction and venue in any federal or state court located within Boston, Massachusetts, USA, and Customer shall not bring any suit, claim or other cause of action except in a court located within Boston, Massachusetts, USA.
(C) Approach for Disputes with Certain Customers. (I) This Section 10.8(C) applies to Customer disputes to the extent that either (a) the Customer’s principal place of business, or jurisdiction of incorporation/formation, is outside the United States in a country that is a signatory or ‘Contracting State’ to The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards (see http://www.newyorkconvention.org/countries), or (b) Recorded Future opts, in its sole discretion, for the dispute to be covered by this Section 10.8(C). (II) Recorded Future (and its affiliates) and Customer hereby consent to resolve any applicable dispute arising out of or related to this Agreement by submission of such dispute to binding and final arbitration in accordance with the Rules, by an arbitral tribunal composed of one or more arbitrators appointed in accordance with the Rules. Arbitration proceedings may be commenced by either party by providing written notice to the other party. All arbitration proceedings will be held in the location specified in the table in Section 10.8(A) (provided that proceedings may be conducted at another location or by telephone conference call with the consent of the parties and the arbitrator(s)). All arbitration proceedings will be conducted in the English language. The arbitrator(s) may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. The parties agree that the arbitrator(s) will be empowered to grant injunctive or other equitable relief, but will have no authority to award punitive damages. The above obligation to arbitrate shall extend to any claim by or against any affiliate, agent, officer, employee, director, manager, member or shareholder of a party. (III) Notwithstanding clause II above, (a) either party may initiate litigation in any court of competent jurisdiction seeking any preliminary or temporary remedy in equity, including the issuance of a preliminary or temporary injunction; and (b) judgment on the arbitration award granted in any arbitration hereunder may be entered in, and the parties shall have the right to seek enforcement thereof by, any court of competent jurisdiction (and any additional expenses incurred in enforcing the arbitration award will be charged against the party that resists its enforcement); and (c) the parties hereby consent to the non-exclusive jurisdiction of any federal or state court located in Boston, Massachusetts, USA, and waive any objections of improper venue or inconvenient forum, in connection with clauses (III)(a) or (III)(b) above.
10.9 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.
10.10 Automated Indicator Sharing. By accessing and using the Service, Customer agrees to the terms of the Automated Indicator Sharing (AIS) Program with the applicable TLP Restrictions (available via https://www.recordedfuture.com/support/automated-indicator-sharing/)
10.11 Recorded Future’s Acceptable Use Policy. While Recorded Future seeks to serve as broad a range of organizations as possible, while abiding by all applicable export-control and other regulations, there are certain limits that are imposed on the use of our offerings by our acceptable use policy. Specifically, Recorded Future prohibits:
- Illegal Activities: The use of any of its services for any unlawful purpose or in furtherance of any illegal activities.
- Discrimination: The use of any of its services to perform targeted collection on the basis of protected characteristics such as race, sex or gender, sexual-orientation, religion, age, national or ethnic origin, disability status, marital status, or genetic information.
- Physical or Financial Harm: The use of any of its services for causing any physical or financial harm to any other individual or entity. This includes, but is not limited to, facilitating unauthorized access to protected systems, or damaging infrastructure.
- Misuse of Financial or PII Data: The use of any of its services for fraud, theft, misappropriation of data, or otherwise misuse financial, personal, or other sensitive information.
- Harassment or Stalking: The use of any of its services to harass or stalk any individual as defined by applicable law.
- Obscenity, Pornography, or Sexually Explicit Material: The use of any of its services to improperly access or view obscene, pornographic, or otherwise sexually explicit material.
- Extortion: The use of any of its services to engage in blackmail, extortion, or for otherwise inappropriate purposes.
- Copyright Infringement: The use of any of its services to violate copyright, or any other applicable intellectual property law.
10.12 Fees. (A) For those Customers purchasing a paid Service directly from Recorded Future, fees 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 statement of work or Order From. Unless otherwise set forth on the Order Form, all fees will be invoiced upon the Effective Date of the Order Form. Payment terms are net thirty (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 unless a valid exemption is provided. 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) For those Customers purchasing a paid Service via a Reseller, fees are as specified in the applicable Order Form between Customer and the 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, due to Customer’s failure to pay Reseller, such failure shall be deemed a material breach of this Agreement by Customer.
(C) Recorded Future reserves the right to impose fees, or other limitations (including upload and/or rate limits), on any offerings that are currently offered free of charge, including Hatching, with prior notification of the Customer.
10.13 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. The parties hereto agree they expressly require the agreement to be entered between them, together with all related documents (including this Agreement), drawn up, executed and distributed in the English language only. Les parties aux présentes conviennent expressément que le contrat qu’ils concluront entre eux, ainsi que tous les documents connexes ou qui s’y rattachent, soient entièrement rédigés, signés et distribués en Anglais seulement.
10.14 SecurityTrails. This Agreement shall apply to, and “Service” includes without limitation, any services offered by SecurityTrails, LLC, including those made available through SecurityTrails.com, DNSTrails.com, the Forensics API, and any other software or services offered by SecurityTrails.
10.15 Third-Party Content and/or Software. (A) The Service, and its Output, may include references or hyperlinks to other web sites or content or resources or email content. Recorded Future has no control over any web sites or resources which are provided by such third-parties. Customer acknowledges and agrees that Recorded Future is not liable for any loss or damage which may be incurred by Customer or other users as a result of the availability of those external sites, content, or resources, or as a result of any reliance placed by Customer on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
(B) The Services may incorporate certain third-party software, which is licensed subject to the terms and conditions of the third party licensing such third party software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such third-party software.
10.16 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 (to the extent applicable) records of the number and identity of all SP End Users and the details of Customer’s use of the Service and Output; 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 SP End Users, or as otherwise stated herein or applicable Order Form.
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 Output, SP End Users, and any other Recorded Future offerings no later than the fifth of each month.
10.17 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: Definitions, Recorded Future Entities, Introduction, Sections 1(B) and Sections 2 through 10.
IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY. YOU MAY NOT USE THE SERVICE AND MAY NOT ACCEPT THIS AGREEMENT IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH RECORDED FUTURE, DO NOT HAVE SUCH AUTHORITY, OR YOU ARE BARRED FROM USING OR RECEIVING THE SERVICE UNDER APPLICABLE LAW.
EFFECTIVE DATE: March 13th, 2023