EULA - End User License Agreement for using the Agnostic Platform
By using the Agnostic Intelligence AG (“Agnostic Intelligence”) Service(s) (as more fully defined below, the “Services”) or otherwise acknowledging your acceptance of this Agreement, for example, by clicking a box indicating your acceptance, or signing a quotation referring to these terms, you (as an individual, company, business, corporation, or other entity, “Customer”), accept and agree to the terms and conditions of this agreement and the terms and conditions of any applicable order (collectively with these terms and conditions, this “Agreement”). If you are accepting this Agreement on behalf of a company, business, corporation, or other entity, you and the applicable company, business, corporation, or other entity each represent and warrant that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” and “Customer” will refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
You may not access or use the Agnostic Intelligence services if you are Agnostic Intelligence’s direct competitor, except with Agnostic Intelligence’s prior written consent (i.e., other than through this Agreement).
Agnostic Intelligence and the Customer may each be referred to as a “Party”, and together as the “Parties”.
1. PROVISION OF, AND RIGHT TO USE THE SERVICES
Agnostic Intelligence agrees to make the Services available to the Customer in accordance with the terms and conditions of this Agreement. Agnostic Intelligence shall be responsible for providing the Services and shall not be responsible for providing any service or product not described in this Agreement. Agnostic Intelligence grants the Customer a non-exclusive, non-transferable right to have the number of authorized users and use the Services solely for the Customer’s internal business purposes.
2. RESTRICTIONS ON LICENSE GRANT
The Customer shall not, directly or indirectly, (i) use the Services to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs, (ii) use the Services to store or distribute any information, material or data that is harassing, threatening, infringing, libellous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party, (iii) access or use the Services if the Customer is a direct competitor of Agnostic Intelligence, (iv) access or use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services, (v) make the Services available to anyone other than an Authorized User, (vi) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the Services, (vii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (viii) attempt to gain unauthorized access to the Services or any associated systems or networks or (ix) modify, make derivative works of, disassemble, decompile or reverse engineer the Services or any component thereof.
3. TERM, TERMINATION
3.1. Term of Agreement. The term of this Agreement commences on the date Customer agrees to the terms hereof (the “Effective Date”) or starts using the Service and continuous for so long as Agnostic Intelligence is providing Services or is otherwise terminated.
3.2. Termination of Agreement. Either Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party.
3.3. Termination for Breach. Either Party may terminate this Agreement following a material breach of this Agreement so long as the terminating Party has given the other party at least thirty (30) days prior written notice of the breach and such breach is not cured within such thirty (30) day period. Termination for breach will not alter or affect the terminating party's right to exercise any other remedies for breach.
3.4. Agnostic Intelligence’s Right to Alter Services. The Customer acknowledges and agrees that Agnostic Intelligence may, from time to time, and at Agnostic Intelligence’s sole discretion, without substantially changing or degrading the existing features, modify, enhance and/or expand the features and functionality of the Services. Agnostic Intelligence may discontinue the Services or elements thereof, provided that Agnostic Intelligence will provide one hundred twenty (120) days prior electronic notice to the Customer if such changes materially and substantially degrade the existing features and functionality of the Services. In such a case, the Customer may terminate each access by providing written notice of its election to terminate each such access at least thirty (30) days prior to the date on which the change noticed by Agnostic Intelligence is set to occur, with such termination to be effective at the end of the expiration of the Initial Term or then current Renewal Term.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Services. As between the Customer and Agnostic Intelligence, Agnostic Intelligence retains all right title and interest in and to the Services, including all intellectual property rights therein and thereto, and the Customer acquires no rights with respect to the Services, by implication or otherwise, except for those expressly granted in this Agreement.
4.2 Customer Data. As between the Customer and Agnostic Intelligence, the Customer retains all rights and interests in data and information submitted, transmitted, generated or stored by the Customer and/or Authorized Users in connection with use of the Services under this Agreement (“Customer Data”), including all intellectual property rights therein and thereto, and Agnostic Intelligence acquires no rights with respect to Customer Data, by implication or otherwise, except for those expressly granted in this Section 4.2. The Customer hereby grants to Agnostic Intelligence, a non-exclusive, worldwide, perpetual, royalty-free, right and license (including the right to authorize and grant sublicenses) to use, store, reproduce, distribute, and display Customer Data, in connection with the provision to the Customer of the Services and the improvement and operation of the Services for the benefit of Agnostic Intelligence’s Customers. The processing of Customer data for these purposes includes both automated and manual (human) methods of processing. Agnostic Intelligence’s automated methods often are related to and supported by manual methods. For example, automated methods include artificial intelligence (AI), which Agnostic Intelligence thinks of as a set of technologies that enable computers to perceive, learn, reason, and assist in decision-making to solve problems. To build, train, and improve the accuracy of our automated methods of processing (including AI), Agnostic Intelligence manually reviews some of the predictions and inferences produced by the automated methods against the underlying data from which the predictions and inferences were made.
4.3 Suggestions. The Customer hereby grants to Agnostic Intelligence a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback related to the Services that is provided by the Customer and/or its Authorized Users.
5. WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF THE CUSTOMER
5.1. Customer Obligations. The Customer shall (i) use the Services solely in accordance with this Agreement and any applicable laws and be responsible for the compliance of all Authorized Users with the foregoing and (ii) notify Agnostic Intelligence promptly of any unauthorized access to the Services of which the Customer becomes aware.
5.2. Compliance. The Customer represents and warrants that (i) the Customer has the ability and authority to enter into and perform its obligations under this Agreement and (ii) the Customer will not, and will not allow others, to use the Services in a manner that is (i) restricted in Section 2 above, or (ii) prohibited by law or regulation.
6. AGNOSTIC INTELLIGENCE WARRANTY AND DISCLAIMER
6.1. Authority. Agnostic Intelligence represents and warrants that Agnostic Intelligence has the power and authority to enter into and perform its obligations under this Agreement.
6.2. Compliant with Description. Agnostic Intelligence represents and warrants that the Services provided will substantially conform to its description provided in any Order Form. The Customer's exclusive remedy for the breach of this warranty shall be the ability to terminate the agreement in accordance with Section 3.3 of this Agreement.
6.3. Acknowledgment. The Customer acknowledges that the Internet consists of multiple interconnected networks that are independently owned and that are not subject to Agnostic Intelligence’s control and that Agnostic Intelligence does not warrant the Services against failure, malfunction, or cessation of Internet services or connectivity by Internet service providers or any of the networks that make up the Internet that may make the Services temporarily or permanently unavailable.
6.4. Disclaimer. Agnostic Intelligence provides its services for informational purposes only on an “as is” and “as available” basis. Agnostic Intelligence makes no warranty or representation regarding the services, any information, materials, goods, or services obtained through the services, or that the services will meet any the Customer requirements, or be uninterrupted, timely, secure or error free. Except for the limited warranties set forth above in sections 6.1 and 6.2, Agnostic Intelligence expressly disclaims all warranties of any kind, express or implied, including, without limitation, any warranty of merchantability or noninfringement. Use of the services are at the Customer’s sole risk. The Customer will be solely responsible for any damage to the Customer resulting from the use or reliance upon such services. Agnostic Intelligence services aggregate, analyse and give meaning to a vast trove of security data available on- and offline, to offer to the Customer insights into how this data reflects the cybersecurity posture of the Customer’s suppliers and other partners, as well as of the Customer’s own organization. Agnostic Intelligence provides its products and services only for informational purposes and does not warrant that these products and services will identify or detect every vulnerability or security issue, or that Agnostic Intelligence’s assessments, reports, or other Agnostic Intelligence materials or advice will be error-free or complete. Agnostic Intelligence disclaims any and all warranties, express or implied, including without limitation warranties of merchantability, with respect to its services, materials and products. The Customer agrees that Agnostic Intelligence shall not be responsible or liable for the accuracy or usefulness of any information the company provides, or for any use of such information by the Customers or others. Because some jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to the Customer. In that event, such warranties are limited to the minimum warranty scope and period allowed by applicable law.
7. LIMITATION OF LIABILITY
Except for the indemnification obligations under sections 8 and 9, in no event shall either party be liable to the other party for any indirect, special, incidental, consequential or punitive damages, including, without limitation, loss of profits or goodwill, for any matter arising out of or relating to this agreement and/or its or their subject matter, whether such liability is asserted on the basis of contract, tort (including negligence) or otherwise, even if such party has been advised of the possibility of such damages; and each party’s total liability for any cause of action, claim, damages, fees, costs or expenses shall be limited to the amount paid by the Customer to Agnostic Intelligence for the services provided by Agnostic Intelligence under this agreement during the six (6) months immediately preceding the date on which the claim at issue accrued. The limitations set forth in this section 7 apply to all causes of action in the aggregate. Each party acknowledges and agrees that this section 7 represents a reasonable allocation of risk and that, in the absence of these limitations of liability, the terms of this agreement would be substantially different.
8. CUSTOMER INDEMNIFICATION
The Customer agrees to indemnify, defend, and hold harmless Agnostic Intelligence, its directors, officers, shareholders, employees and agents, and their respective successors, assigns, estates and heirs (the “Agnostic Intelligence Indemnified Parties”) from and against any and all causes of action, losses, liabilities, claims, damages, obligations, fees, costs, expenses (including, without limitation, reasonable legal/attorney’s fees), brought by or owing to any third party and arising from or related to (i) any wrongful act or omission of the Customer, (ii) any breach of the warranties set forth in Section 5 of this Agreement, and (iii) any use by the Customer of or reliance by the Customer upon the Services and any information, materials, goods or services obtained through the Services; provided, that Agnostic Intelligence (i) promptly gives the Customer written notice of the claim; (ii) gives the Customer sole control of the defence and settlement of the claim (provided that the Customer may not settle any Claim unless the settlement unconditionally releases Agnostic Intelligence of all liability); and (iii) provides to the Customer all reasonable assistance, at the Customer’s expense.
9. AGNOSTIC INTELLIGENCE INDEMNIFICATION
Agnostic Intelligence will defend at its own expense any action brought against the Customer, or the Customer’s directors, officers or employees (“Customer Indemnified Parties”) by a third party to the extent that the action is based on a claim, suit or proceeding that the Services infringe such party’s copyright or trademark rights (“Infringement Claim”), and Agnostic Intelligence will pay those costs and damages (including, but not limited, to legal/attorneys’ fees) finally awarded against Customer Indemnified Parties by a court of competent jurisdiction in any such action that are specifically attributable to such Infringement Claim, or those costs and damages agreed to in a monetary settlement of such action; provided, however, that the Customer provides Agnostic Intelligence with prompt notice of the Infringement Claim, sole control of defence and settlement of that Infringement Claim, and reasonable assistance regarding such Infringement Claim at Agnostic Intelligence’s reasonable expense. In the event of any such Infringement Claim, Agnostic Intelligence may, at its option: (i) purchase a license to permit the Customer to continue using the Services; (ii) modify or replace the relevant Services with non-infringing services of substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement immediately and reimburse the Customer for any fees paid in advance for Services that will not be performed due to such termination. Notwithstanding the forgoing, Agnostic Intelligence will have no obligation under this section or otherwise with respect to an Infringement Claim based upon: (i) any use of the Services not in accordance with this Agreement or for purposes not intended by Agnostic Intelligence; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by Agnostic Intelligence; (iii) any use of any form of the Services other than the most current form made available to the Customer; or (iv) any modification of the Services by any person other than Agnostic Intelligence or its authorized representatives. This Section 9 states Agnostic Intelligence’s sole and exclusive liability, and the Customer’s sole and exclusive remedy, for Infringement Claims. Agnostic Intelligence will not be responsible for any amounts arising out of any compromise or settlement made by the Customer without Agnostic Intelligence’s prior written consent.
10.1. Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any information which should be considered confidential by a party exercising reasonable business judgment and that is furnished or transferred hereunder by or on behalf of such a party, (the "Disclosing Party"), to the other party ("Receiving Party"), whether such information is or has been conveyed verbally or in written or other tangible form, including, but not limited to, trade secrets and technical, financial or business information, pricing, data, ideas, concepts or know-how. Confidential Information disclosed in tangible or electronic form may be identified by the Disclosing Party as confidential with conspicuous markings, or otherwise identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by a party exercising reasonable business judgment from being treated as Confidential Information by the Receiving Party. Confidential Information shall not include any information that (i) is available to the general public other than by a breach of confidentiality, (ii) was known to the Receiving Party without any limitation on use or disclosure prior to its receipt from the Disclosing Party, (iii) is received from a third party without any obligation of confidentiality, (iv) was independently developed by the Receiving Party without reference to or reliance on any Confidential Information of the Disclosing Party, or (v) is generally made available to third parties by the Disclosing Party without restriction on disclosure.
10.2. Use of Confidential Information. A Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement. The Receiving Party shall not disclose, disseminate or otherwise communicate, in whole or in part, the Disclosing Party’s Confidential Information to any third party without the prior written consent of Disclosing Party, except that the Receiving Party may disclose Confidential Information (i) to its agents, independent contractors, attorneys and financial advisors who are subject to a duty of confidentiality that is no less restrictive than the duty of confidentiality set forth in this Section 10 (“Representatives”), or (ii) pursuant to a court order or subpoena or other legal process (in which case the Receiving Party shall provide prompt notice of receipt of the same to the Disclosing Party to enable the Disclosing Party to apply for appropriate protective order or other relief). The Receiving Party further agrees that it shall take reasonable precautions to safeguard the Disclosing Party’s Confidential Information from disclosure and, at a minimum, use efforts commensurate with those the Receiving Party employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event less than reasonable care. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return the Disclosing Party’s Confidential Information (and any and all copies thereof) to the Disclosing Party.
10.3. Remedies. Receiving Party agrees that Disclosing Party may be irreparably injured by a breach of the confidentiality provisions of this Section 10 and that Disclosing Party shall be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches of the confidentiality provisions of this Agreement and to enforce specifically the terms and provisions hereof in any action instituted in any court having personal and subject matter jurisdiction, in addition to any other remedy to which Disclosing Party may be entitled at law or in equity in the event of any breach of the provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of the confidentiality provisions of this Agreement but shall be in addition to all other remedies available at law or in equity.
10.4. Permitted Disclosure. In addition to the above, the Customer agrees that Agnostic Intelligence may disclose certain Customer data/information to the extent that Agnostic Intelligence believes such disclosure may be necessary to: (i) conform to the edicts of the law or comply with legal processes served on Agnostic Intelligence; (ii) bring legal action to defend and protect the rights or property of Agnostic Intelligence, its Customers or anyone else; (iii) act under exigent circumstances to protect the personal safety of its Customers or the public; or (iv) administer its network to maintain performance for its Customers.
10.5. Performance Data. Agnostic Intelligence shall exclusively own all right, title, and interest to data produced by Agnostic Intelligence in the course of the delivery of the Services to the Customer (“Performance Data”); however, Agnostic Intelligence, and Agnostic Intelligence’s Representatives, will only use Performance Data (i) to exercise or perform its rights or obligations under this Agreement, and/or (ii) for Agnostic Intelligence’s internal business purposes. Agnostic Intelligence will not disclose Performance Data to third parties (except for Agnostic Intelligence’s Representatives to which Agnostic Intelligence may disclose Performance Data for the purposes specified above) except to the extent that such disclosure is necessary to perform the Services and/or for the purposes set forth in Section 10.4 of this Agreement.
The Customer agrees that Agnostic Intelligence and its Representatives may store, use and process: (i) Customer data in connection with Agnostic Intelligence’s provisioning of the Services, including Customer account administration, maintenance and support activities, billing and invoicing, Agnostic Intelligence’s internal Customer and market analysis and reporting, and to communicate to The Customer regarding products and services of Agnostic Intelligence; and (ii) Customer billing data in connection with Agnostic Intelligence’s provisioning of the Services, including Customer account administration, billing, invoicing and payment processing.
The Customer agrees that Agnostic Intelligence may: (i) publicly list the Customer as a recipient of the Services on its website and in its marketing materials; (ii) subject to the Customer’s prior approval, publicly announce the fact that the Customer is using Agnostic Intelligence’s services; and (iii) subject to the Customer’s prior approval as to content, form and use of trademark, publish, and send out materials containing the Customer’s name and trademark.
13. MAINTENANCE AND MODIFICATIONS
Agnostic Intelligence may from time-to-time interrupt or otherwise impact Service for routine maintenance. Agnostic Intelligence shall make reasonable efforts to give the Customer a minimum of five (5) business days advance notification (via phone, email or on the platform) of such maintenance and Agnostic Intelligence shall use best efforts to ensure that such maintenance shall not interrupt delivery of Service to the Customer. In the event of a need for emergency maintenance, Agnostic Intelligence will make reasonable efforts to notify the Customer and to provide as much notification as is deemed practicable by Agnostic Intelligence regarding any downtime or other information pertinent to the affected Service.
14.1. Relationship of Parties. The performance by Agnostic Intelligence of its duties and obligations under this Agreement shall be that of an independent contractor, and nothing in either agreement shall create or imply an agency relationship between Agnostic Intelligence and the Customer, nor will either agreement be deemed to constitute a joint venture or partnership between the Parties. Furthermore, the Parties agree that the relationship between Agnostic Intelligence and the Customer is non-exclusive.
14.2. Assignment. Neither party may assign its rights and obligations under this Agreement, either in whole or in part, without the express written consent of the other party; however, a party may assign such rights and obligations to an acquiring or successor entity in connection with a merger or acquisition, including the sale of all or substantially all the assigning party’s assets. Any assignment in violation of this subsection 14.2 shall be void.
14.3. No Waiver. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under the same be construed as a waiver of any other default. No waiver of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, and no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
14.4. Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the Parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the Parties had the stricken provision remained.
14.5. Amendment. No amendment, modification, change or discharge of this Agreement shall be valid unless in writing and signed by both Parties.
14.6. Survival. The respective rights and obligations of the Parties hereunder shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive. Without limiting the foregoing, the provisions of Sections 4, 6.4, 7, 8, 9, 10 and 13 shall survive any termination or expiration of this Agreement.
14.7. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, act of terrorism, act of cyber-warfare, act of war, labour dispute, act of God or any other cause or causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause or causes. If such hindrance persists for a period of thirty (30) days or more, then either party shall have the right to terminate each applicable Order and/or terminate this Agreement without penalty and/or liability.
14.8. No Inducement. Both Parties acknowledge that they have not been induced to enter into this Agreement or any associated agreements by any representations or promises not specifically stated therein and herein.
14.9. Headings. Headings are used in this Agreement and all associated agreements are solely for convenience and shall not be deemed to affect in any manner the meaning or intent of the applicable agreement or any provision there/hereof.
14.11. Notices. All notices, unless specified as an “electronic notice,” due under the terms of this Agreement shall be given in writing and sent by registered mail, reputable express courier service, or shall be delivered by hand to the following addresses: If to Agnostic Intelligence: Agnostic Intelligence AG, Gotthardstrasse 26, 6300 Zug, Switzerland.
14.12. Governing Law. The Agreement and all agreements associated herewith shall be governed in all respects by the laws of Switzerland without regard to its conflict of laws principles, and all claims and/or lawsuits in connection with this Agreement, and/or any associated agreements must be brought in any state or federal court located in Switzerland, and the Parties hereby irrevocably submit to the jurisdiction and venue of any such court.
14.13. Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written.
14.14. No Third-Party Beneficiaries. The Parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement.
Agnostic Intelligence AG