1. SCOPE OF USE; OTHER AGREEMENTS. (A) Customer’s access and use of the Service and any related user documentation (“Documentation”) shall be limited to solely its own internal business purposes, and shall otherwise be subject to and in compliance with all the terms and conditions herein. Such access and use of the Service is also restricted by and subject to further conditions in 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 permitted resellers (each, an “Other Agreement”), including any subscription fee, subscription term, scope of use, or other limitations, restrictions or obligations applicable to Customer therein. As also noted in Section 2 below, access and use of the Service may require an active subscription pursuant to an Other Agreement. (B) Notwithstanding anything else herein, this Agreement does not provide any rights to Customer, including any right to access or use the Service, but for clarity does impose obligations on Customer.
2. SUSPENSION AND TERMINATION. To the extent Customer materially breaches this Agreement or any Other Agreement, or Recorded Future believes in good faith that it 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, including payment of relevant fees by or for 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.
3. RESTRICTIONS; PROPRIETARY RIGHTS. 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; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work 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 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; (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) 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. 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.
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 an Other Agreement between Customer and Recorded Future (or its affiliates), 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. Unless expressly permitted by an applicable Other Agreement between Customer and Recorded Future (or its affiliates), redistribution or copies of any part of the service is not allowed. 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).
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 will be owned by 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 (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.
4. LOGO. 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.
5. CONFIDENTIALITY. Customer shall maintain as confidential and shall not disclose (except to its 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), copy or use for purposes other than the performance of this Agreement, any information, in any form or format, disclosed by Recorded Future (or its affiliates), or otherwise accessed or received by Customer relating to Recorded Future (or its affiliates) or the Service, 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 Recorded Future’s (or any of its affiliate’s) business affairs, trade secrets, technology, research, or development (“Confidential Information”) and Customer 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 and Documentation 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, Recorded Future 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. Customer shall be liable to Recorded Future for any use or disclosure in violation of this Section by Customer or its affiliates, subsidiaries, employees, advisors, accountants, attorneys, outsources, 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 Recorded Future; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of 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 Customer, under any legal obligation of confidentiality; or (e) Customer receives written permission from Recorded Future for the right to disclose any Confidential Information.
Notwithstanding the above, this Section shall not prohibit Customer 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 Customer gives Recorded Future prior written notice, if practicable, and reasonably cooperates with related requests of Recorded Future. Further, notwithstanding anything to the contrary herein, if Customer provides Recorded Future (or its affiliates or resellers) any feedback or suggestions regarding the Service or its other offerings, including potential improvements or changes (collectively, “Feedback”), Recorded Future shall be free to use, disclose and otherwise exploit in any manner Feedback for any purpose, without any obligation of confidentiality with respect thereto. Upon expiration or termination of this Agreement, Customer shall promptly return or destroy Confidential Information; provided that, it may retain (i) a copy to track its related obligations hereunder, (ii) Confidential Information to the extent reasonably necessary for its surviving obligations hereunder or as required to be retained by applicable law, regulation and/or audit requirements, and (iii) backup or archival copies created and maintained in the ordinary course of business pursuant to its standard policies with respect automated archiving or back-up procedures, so long as in each of cases i-iii, for clarity, such retained information remains subject to the confidentiality obligations herein.
6. DISCLAIMER OF WARRANTY. THE SERVICE IS ACCESSED AND USED BY CUSTOMER HEREUNDER “AS-IS.” RECORDED FUTURE AND ITS AFFILIATES HEREUNDER MAKE NO AND DISCLAIM 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.
7. LIMITATION OF LIABILITY. 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.
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, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES 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. FURTHERMORE, ALL 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.
8. INDEMNIFICATION. 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 out of 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 or its affiliates’ 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 or its affiliates. Customer will cooperate with Recorded Future with respect to such defense and settlement.
9.1 Entire Agreement; Modification of Agreement. 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 (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. 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.
9.2 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 exercising its rights shall not constitute a waiver of any other provision, breach or default.
9.3 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).
9.4 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. Notices to Recorded Future should be sent to it at 363 Highland Avenue, Rear Suite 2, Somerville, Massachusetts 02144 (which address Recorded Future may update by notice to Customer). 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.
9.5 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.
9.6 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. 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. export control regulation, or regulated by the International Traffic in Arms Regulations, 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. 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. 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.
9.7 Force Majeure. Neither Recorded Future nor any of its affiliates will be responsible for any act or omission 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”).
9.8 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 Commonwealth of Massachusetts, USA, without regard to any conflict of law principles that would apply another law. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby excluded.
(B) Default Approach for Disputes. Except to the extent a Customer dispute is covered by Section 9.8(C) below, Customer hereby consents to jurisdiction and venue in any federal or state court located within the Commonwealth of Massachusetts, USA, and Customer shall not bring any suit, claim or other cause of action except in a court located within the Commonwealth of Massachusetts, USA.
(C) Approach for Disputes with Certain Customers. (I) This Section 9.8(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 9.8(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 of Arbitration (the “Rules”) of the International Chamber of Commerce, 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 Boston, Massachusetts, USA (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 Massachusetts, USA, and waive any objections of improper venue or inconvenient forum, in connection with clauses (III)(a) or (III)(b) above.
9.9 Non-Solicitation. Customer shall not directly or indirectly solicit, employ or engage any employee of Recorded Future (or its affiliates) with whom it came into contact relating to the Service during the period of such contact and for one (1) year thereafter. 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 Recorded Future (or its affiliates) initiates contact with Customer with regard to possible employment; or (b) general solicitations of employment not specifically targeted at employees of Recorded Future (or its affiliates), including responses to general advertisements.
9.10 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.
9.11 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 1(B) and Sections 2 through 9.