Effective prior to May 25, 2018 (view current version)

This is a binding legal Agreement between you (“you” or the “Customer”) and ZeroFOX, Inc., a corporation having offices at 1834 S. Charles Street, Baltimore MD 21230 (“ZeroFOX”). This Agreement becomes binding and effective on you when you click the box indicating your acceptance or when you execute an order, either with ZeroFOX, or a designated reseller of the Zerofox services (a “Reseller”), for the ZeroFOX Services (an “Order”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms, “Customer”, “you” or “your” refers to such entity and its affiliates. 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 the services if you are our direct competitor, except with ZeroFOX’s prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. SERVICES

This Agreement applies to your use of any services that are purchased by you and provided by ZeroFOX (the “Services”). Services may include, without limitation, the Application Services, the Support and Managed Services and Professional Services, each as defined in this Agreement.

1.1 Application Services.

(a) For the subscription length purchased by you (the “Access Term”), ZeroFOX agrees to provide you with access to ZeroFOX’s proprietary software (the “Application Services”). Access to the Application Services will be through one or more websites designated by ZeroFOX (the “Platform”). Access is limited to the scope of set forth on the Order and subject to the terms and conditions of this Agreement. You may only access the Application Services during the Access Term and may only use the Application Services for your internal business purposes.

(b) The Application Services may be used only by your employees or contractors who are acting on your behalf in the internal operation of your business (“Authorized End Users”). You shall be fully responsible for compliance with this Agreement by, as well as the acts and omissions of, all users who access the Application Services under their Authorized End User login credentials, to the full extent as if such end users are employees or agents acting on your behalf within the scope of their duties. You shall not authorize access to or permit use of the Application Services by persons other than Authorized End Users. You shall ensure that no more than one Authorized End User will have access to or will use each Authorized End User login credentials. ZeroFOX may, at any time and without any liability to you, suspend an end user’s access to the Application Services in the event ZeroFOX reasonably believes that such end user has violated any provision of this Agreement.

(c) Documentation License.  ZeroFOX grants to you a non-exclusive, non-transferable, non-sublicenseable right and license during the Access Term to reproduce copies of all then-current user manuals and other technical materials relating to the Application Services that are generally made available to ZeroFOX’s customers (the “Documentation”), solely for your use relating to the exercise of rights granted in this Agreement. No right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Documentation. You shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices that are contained within any copies of the Documentation.

(d) You are responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary to access and use the Application Services via the Platform.

(e) Nothing in this Agreement may be interpreted as an implied license to, or to require ZeroFOX to deliver a copy of, any software or other product utilized by ZeroFOX to provide the Application Services.

1.2 Support and Managed Service. ZeroFOX shall provide support and managed services for the Application Services, as purchased by you pursuant to an Order (the “Support and Managed Services”). The Support and Managed Services that are available for purchase are described in the ZeroFOX Support and Service Level Addendum, viewable at https://www.zerofox.com/docs/zf-sla (the “SLA”), which is incorporated herein by reference.

1.3 Professional Services. If you have purchased professional services related to your use of the Application Services, such as implementation, configuration and/or training services (“Professional Services”), ZeroFOX shall provide such Professional Services. The Professional Services may be subject to additional terms and conditions, such as a statement of work. ZeroFOX will be under no obligation to perform Professional Services until an Order or statement of work in relation thereto has been mutually executed. If the Professional Services involve the delivery of any work product, developments, inventions, technology or materials (collectively, “Deliverables”) except to the extent that such Deliverables include Customer Content or your Confidential Information, ZeroFOX shall retain ownership of all Deliverables. ZeroFOX grants to you a non-exclusive right and license to use the Deliverables solely for its internal business purposes.

1.4 Proprietary Rights; No Implied Licenses. As between the parties, ZeroFOX owns all Intellectual Property Rights (as defined herein) and other proprietary interests that are embodied in, or practiced by, the Application Services, including the ZeroFOX software applications that provide the Application Services functionality and all updates, upgrades, bug fixes and components made thereto; and to Platform, and the Documentation. To be clear, however, the preceding sentence does not constitute a representation or warranty regarding ownership of any intellectual property rights or other proprietary interests. “Intellectual Property Rights” are the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.

1.5 General Restrictions on Use. You shall not to act outside the scope of the rights that are expressly granted by ZeroFOX in this Agreement. You shall not (a) make the Application Services available to anyone other than to your Authorized End Users; (b) sell, resell, license, sublicense, rent, lease or distribute the Application Services or any Reports, or include any Application Services or Reports or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify or make derivative works based upon the Application Services; (d) “frame” or “mirror” any Reports contained in, or accessible from, the Application Services on any other website, server, wireless or Internet-based device; or (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component underlying the Application Services is compiled or interpreted. Nothing in this Agreement shall be construed to grant you any right to obtain or use such source code. You acknowledge and agree that compliance with this Article 2 is an essential basis of this Agreement.

2. TREATMENT OF CONTENT

2.1 Customer Content. During the Access Term, you may provide to ZeroFOX this certain data, media or content that is uploaded, stored, analyzed and made available to and through the Application Services (collectively, “Customer Content”). ZeroFOX does not control and is not responsible for the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Customer Content and you are solely responsible for its use of all such content. You hereby grant to ZeroFOX a non-exclusive license to use, store, process, analyze and display in reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by or derived from the Application Services (“Reports”) all Customer Content during the Access Term for the limited purposes of performing ZeroFOX’s obligations under this Agreement. You shall provide to ZeroFOX the Customer Content in compliance with applicable laws and shall, at your own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for ZeroFOX’s and your use of the Customer Content as contemplated by this Agreement and as necessary to enable you to grant the rights granted by this Section 2.1.

2.2 Third-Party Content. The Application Services include access to social media content, posts, blogs, surveys, ratings, reviews, feedback or any other information collected or otherwise obtained from a website owned or operated by a third party (collectively “Third-Party Content”). Third-Party Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws. ZeroFOX does not own any Intellectual Property Rights or other rights or licenses in or to the Third-Party Content. To the extent that you use any Third-Party Content outside of the Application Services or access a website owned or operated by a third party (a “Third-Party Site”), you shall adhere to any terms of service of the applicable Third-Party Site.

2.3 Content Disclaimers.

(a) Other than providing the Services as described in this Agreement and the applicable Order, ZeroFOX shall have no obligation to preview, verify, modify, filter or remove any Third-Party Content (although ZeroFOX may do so in its sole discretion), and ZeroFOX shall not be responsible for any failure to remove, or for any delay in removing, harmful, inaccurate, unlawful or otherwise objectionable Third-Party Content.

(b) As between the parties, you are responsible for backup and archiving of any content processed by the Application Services, including all Customer Content and Third-Party Content. ZeroFOX will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Content or Third-Party Content.

(c) In the event Third-Party Site ceases to make Third-Party Content available for use as contemplated in this Agreement on terms acceptable to ZeroFOX, ZeroFOX shall have the right to discontinue provision of any tools to retrieve or access to such Third-Party Content, and/or may discontinue the processing, analysis, storage or provision of access to any such Third-Party Content, without thereby entitling you to any refund, credit, or other compensation, other than a refund of the unearned portion of any fee that was paid to ZeroFOX, if any, for actually supplying the access to such Third-Party Content.

(d) ZeroFOX does not provide any warranty or support under this Agreement for any non-ZeroFOX products or services, including without limitation, Customer Content or Third-Party Content.

2.4 Authorization for Take-Down Requests.  As part of the Application Services, ZeroFOX may contact representatives of third-party social media sites on your behalf to request the removal of certain content from that site (“Take-Down Requests”) where ZeroFOX believes such content to be malicious. Take-Down Requests are performed by ZeroFOX at your request, using the standard functionality of the Application Services. As such, during the Access Term, you hereby grant to ZeroFOX a limited, revocable appointment to submit Take-Down Requests. You represent and warrant that it has full right, power and authority to grant this appointment to ZeroFOX.

3. PAYMENT OBLIGATIONS

You shall pay all amounts due or incurred by you, including any late payment fees, as specified in an invoice provided by ZeroFOX or its Reseller. If any authority imposes a duty, tax or similar levy (other than taxes based on ZeroFOX’s or its Reseller’s income), you agree to pay, or to promptly reimburse ZeroFOX or its Reseller (as applicable) for, for all such amounts. Unless otherwise indicated on an Order, all invoices are payable thirty (30) days from the date of invoice. If your account is more than thirty (30) days overdue, ZeroFOX shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend your access to all Application Services, without further notice, until you have paid the full balance owed.

4. TERM AND TERMINATION

This Agreement will be in effect on the earlier to occur of (i) the effective date set forth on an Order, and (ii) the date on which you click, “Yes, I agree”, and continue until the Access Term under all Orders have expired, unless terminated sooner as provided herein. The term of this Agreement shall apply to all of your subsequent visits and uses and the Application Services. This Agreement will terminate immediately without notice if you materially breach any term or condition herein. Upon termination, all rights granted to you under this Agreement will immediately cease. Without limiting the foregoing, ZeroFOX has the right to immediately terminate any passwords or accounts created by you in the event that you fail to pay any amounts that you owe ZeroFOX in a timely manner or otherwise breach this Agreement. In the event of termination of this Agreement, (y) ZeroFOX will have no obligation to store, retain or return Customer Content or Third-Party Content and may, unless legally prohibited, delete Customer Content and Third-Party Content from its systems; and (z) your restrictions and ZeroFOX’s rights under this Agreement shall survive any such termination.,

5. TREATMENT OF CONFIDENTIAL INFORMATION

5.1Confidential Information” means: any information or data (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations) provided or disclosed by a party or its agents (the “Disclosing Party”) to the other party (the “Receiving Party”) that is: (i) fixed in a tangible medium and marked as the confidential or proprietary information of the disclosing party; (ii) otherwise provided or disclosed by or on behalf of the disclosing party marked as proprietary at the time the information is provided; or (iii) not falling within any of the prior clauses of this sentence, but which, a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure. The Application Services and the Documentation are ZeroFOX’s Confidential Information. The terms of this Agreement shall constitute the Confidential Information of both parties. Confidential Information does not include any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

5.2 Party Obligations.  The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Disclosing Party’s Confidential Information, and, if requested by the Disclosing Party, the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

5.3 System Use Information. ZeroFOX may use and disclose, in its discretion, any aggregated, anonymized or de-identified information regarding your use of the Application Services. Any disclosure of such information outside of ZeroFOX will not identify you or your Authorized End Users.

6. WARRANTY AND DISCLAIMER

6.1 Mutual Representations. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

6.2 Customer Representations and Warranties. You represent and warrant that (i) you will provide the Customer Content in compliance with Section 2.1 of this Agreement, (ii) the Customer Content will not include content that is unlawful, fraudulent, or violates or infringes the rights of third parties, including but not limited to Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights; (iii) you will use the Third-Party Content in compliance with Section 2.2 of this Agreement; and (iv) you will use the Application Services and Reports in compliance with applicable laws.

6.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY ZEROFOX ARE PROVIDED “AS IS,” AND ZEROFOX DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ZEROFOX DOES NOT WARRANT THAT THE APPLICATION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY ZEROFOX WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.

7. LIMITATION OF LIABILITY

7.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING (i) YOUR OBLIGATION TO PAY FEES WHEN DUE UNDER ANY ORDER, (ii) EITHER PARTY’S INDEMNFICATION OBLIGATIONS, AND (iii) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY YOU FOR THE APPLICATION SERVICES DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.2 Essential Basis of the Agreement. The disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between you and ZeroFOX, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. EXPORT; RESTRICTED RIGHTS

You shall comply with all U.S. export laws and applicable export laws of its locality (if you are not located in the United States), and you agree not to export of the Application Services or other materials provided by ZeroFOX without first obtaining all required authorizations or licenses.

9. NOTICES

All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the parties at their respective addresses set forth on the Order, or addressed to such other address as the receiving party may have given by written notice in accordance with this provision. Notices to ZeroFOX shall be addressed to the attention of its Chief Financial Officer, and notices to you shall be addressed to the person identified as your primary point of contact on the Order, unless in either case the receiving party has otherwise indicated by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile or electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either party delivers any notice by means of facsimile or email transmission in accordance with the preceding sentence, such party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving party, addressed as set forth above or to such other address as the receiving party may have previously substituted by written notice to the sender.

10. FORCE MAJEURE

Except for payments owed hereunder, if a party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing party.

11. ASSIGNMENT; DELEGATION

This Agreement shall be binding and inure to the benefit of the parties and each of their respective successors and assigns. Except in the event of a sale, merger or other change in control event, neither party shall assign this Agreement without the express, prior written consent of the other party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.

12. NO THIRD PARTY BENEFICIARIES

The covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

13. GOVERNING LAW; JURISDICTION

THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN BALTIMORE, MARYLAND. Each party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such party. To the fullest extent permitted by law, each party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.

14. ENTIRE AGREEMENT

The parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses, including the parties’ respective confidentiality obligations. The parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.

15. ENFORCEABILITY

Even if the law will not enforce a provision of this Agreement in a particular instance, the parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.

16. AGREEMENT AMENDMENTS

The parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.

17. WAIVERS

Even if a party fails to enforce its rights under this Agreement in a particular instance, the other party must still perform its duties in that instance unless the non-enforcing party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.