Intel 471 End User License Agreement
INTEL 471 END USER LICENSE AGREEMENT
This end user license agreement (“Agreement”) constitutes a binding contract between your company or organization (“Subscriber”) and Intel 471 Inc. (“Intel 471”). Subscriber and Intel 471 may individually be referred to as a “Party” or together as the “Parties.”
The Agreement is made effective as of the earlier of (i) Subscriber receiving access to the platform, API or other products or services of Intel 471 (“Subscription”) that are described in a duly issued quote or other written offer (“Quote”) provided to Subscriber by a duly authorized distributor, reseller or other partner of Intel 471 (“Partner”); or (ii) Subscriber providing a purchase order or other legally binding instrument (“Purchase Order”) that commits Subscriber to purchasing a Subscription from a Partner in accordance with the terms of a Quote (“Effective Date”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1 - License Grant:
Subject to the terms and conditions of the Agreement, Intel 471 grants Subscriber a worldwide, non-exclusive, irrevocable, non-transferable, non-sublicensable license to access and use the deliverables set forth in the Quote (“Deliverables”) for the benefit of itself and its Subsidiaries, and solely for the purposes identified in the Quote. “Subsidiary” means, as to Subscriber, any person that is controlled by Subscriber, where “control” shall mean (i) the power to direct the overall management and day-to-day operations of such person; or (ii) ownership of more than 50% of the voting equity interests of such person. Any reference to “Subscription” in the Agreement shall be deemed a reference to any individual component or combination of components of the Subscription.
2 - License Restrictions:
Except as explicitly permitted under the Agreement, Subscriber shall not (i) modify, reverse engineer, decompile, disassemble or otherwise attempt to discern the source code, protocols, processes or other technology of the Subscription; (ii) use the Subscription in violation of the Documentation or local laws, rules and regulations; (iii) resell, distribute, sublicense or make the Subscription available on a “service bureau” basis; or (iv) remove or modify marks or legends on the Subscription. “Documentation” means all specifications, user manuals or other materials provided by Intel 471 governing or related to Subscriber’s use of the Deliverables. Subscriber shall not introduce or insert into the Subscription any virus, Trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, spyware or other software, code or program that is likely or intended to affect the performance of, or which may be used to deny or facilitate unauthorized access to, the Subscription’s software, hardware, network, services, systems or data (“Malware”). Subscriber shall immediately notify Intel 471 if it becomes aware of any Malware. Subscriber acknowledges that the Subscription includes software that may be subject to export, import, or use controls by governmental authorities. Subscriber agrees not to export, import, use, transfer or re-export such software except in compliance with the laws and regulations of governmental authorities in jurisdictions from which the Subscription is being exported or to which the Subscription is being imported.
3 - Access & Security:
3.1 Intel 471 will provide credentials to employees or contractors of Subscriber whose primary job responsibilities include protecting cyber or information security (“Authorized Users”) in accordance with the terms of the Quote. Each set of credentials is personal to a single Authorized User (who may not disclose their credentials to another person) and must be tied to a business email account owned and administered by Subscriber.
3.2 Subscriber shall be solely liable for the acts and omissions of its Authorized Users and Subsidiaries, and any such acts and omissions that would constitute a breach if committed by Subscriber shall be deemed to be those of Subscriber under the Agreement.
4 - Intelligence Sharing:
4.1 Except as explicitly permitted under the Agreement, Subscriber may not disclose Intelligence to any third party other than its Subsidiaries without Intel 471’s prior written consent, including by email forwarding or by posting on a publicly accessible website. “Intelligence” means all information or content accessible to Subscriber and its Authorized Users through the Deliverables. Additionally, Subscriber shall not, nor permit its Authorized Users, Subsidiaries, or any other person acting under its control, to make Intelligence available to any person (including internal teams, specific employees and foreign affiliates or branch offices) placed under any form of sanctions (i) implemented pursuant to the Sanctions and Anti-Money Laundering Act 2018 (UK); (ii) administered by the U.S. Department of the Treasury (Office of Foreign Assets Control); or (iii) implemented by the Directorate-General for Financial Stability, Financial Services and Capital Markets Union (EU).
4.2 Victim notifications that are requested through Responsible Disclosure Support (when included as a Deliverable) will (i) only be provided to current customers of Subscriber and its Subsidiaries; (ii) contain the minimum Intelligence necessary for remediation purposes; (iii) identify Intel 471 as the source of Intelligence; and (iv) be stored together in a secure record which shall be delivered to Intel 471 upon request. Subscriber acknowledges that Intel 471 may be unable to approve victim notifications when doing so would jeopardize its operators, sources or methods, or interfere with ongoing law enforcement actions or investigations. Accordingly, victim notifications of any kind using Intelligence may not be disclosed to third parties other than Subscriber’s own Subsidiaries without Intel 471’s prior written approval, which may be withheld at Intel 471’s sole and absolute discretion.
5 - Intellectual Property:
5.1 Subscriber acknowledges and agrees that Intel 471 owns all right, title and interest in and to the Subscription, including all source code, object code, protocols, processes, operating instructions, websites, interfaces and research methods developed for or relating to the Subscription, together with all (i) modifications, enhancements, revisions and changes thereto; (ii) copies, translations, compilations and derivative works thereof; and (iii) all Intellectual Property Rights therein. “Intellectual Property Rights” means all present and future intellectual property rights which exist or may be created under the laws of any jurisdiction in the world, including, but not limited to, copyrights, trademarks, trade names, patents, trade secrets, industrial property rights, works of authorship and business methods, as well as rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissuances of, and applications for, any of the foregoing. Nothing in the Agreement shall effect a transfer of ownership of the Subscription or Intel 471’s Intellectual Property Rights and all rights not granted to Subscriber in the Agreement are reserved to Intel 471.
5.2 Subscriber and its Authorized Users may provide Intel 471 with opinions, suggestions or other information in response to their use of the Subscription, including ideas related to content presentation or potential changes to technical features (“Feedback”). Intel 471 may also collect anonymized usage data, such as execution times or error frequency (“Analytics”). Subscriber agrees that all interests in Feedback and Analytics are owned solely by Intel 471.
5.3 If Intel 471 believes that the Subscription may be subject to a claim of infringement or misappropriation of third-party rights, Intel 471 may, for the remainder of the Term, (i) obtain the right for Subscriber to continue using the Subscription; (ii) replace any components of the Subscription believed to be infringing, or (iii) modify the Subscription to be non-infringing, in each case while preserving the functionality of the Subscription to Subscriber’s satisfaction. If none of the foregoing actions are commercially reasonable, or if a change in law, rules, regulations or related enforcement guidelines prevent delivery of the Subscription, Intel 471 may terminate the Agreement upon notice to Subscriber. In the event of termination in accordance with this Section 5.3, Intel 471 will refund Partner any fees paid by to Intel 471 as consideration for the Subscription pro-rata, based on time remaining in the Term as of the date of termination. Subscriber agrees that Partner shall be solely responsible for paying any corresponding refund to Subscriber.
6 - Confidentiality:
6.1 “Confidential Information” of a Party means any information disclosed by such Party (“Disclosing Party”) to the other Party (“Receiving Party”) during the Term that is marked as confidential or that the Receiving Party should reasonably understand is proprietary or confidential to the Disclosing Party. Confidential Information of a Disclosing Party does not include information that (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was available to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party that owes no contractual or fiduciary obligations of confidentiality to the Disclosing Party; or (iv) is independently developed by the Receiving Party. Notwithstanding any other provision of the Agreement, Subscriber understands and agrees that cybersecurity-related information of any kind sourced by Intel 471 and provided to its customers or to other entities potentially impacted directly or indirectly by a security incident does not constitute Confidential Information of Subscriber.
6.2 During the Term and for five (5) years afterward, neither Party shall disclose the other Party’s Confidential Information to a third party without the other Party’s prior written consent and shall only share same with need-to-know personnel who have undertaken confidentiality obligations no less strict than those set forth in the Agreement. If a Receiving Party is required by applicable law to disclose the Disclosing Party’s Confidential Information, the Receiving Party may do so to the minimum extent required by law; provided, that it gives the Disclosing Party prior written notice to enable the Disclosing Party to seek a protective order or otherwise prevent the disclosure. In the event of a breach of this Section 6.2, the Parties agree that their respective remedies at law are inadequate, and each Party consents to equitable enforcement of its confidentiality obligations without the other Party being required to show irreparable harm.
7 - Limitation of Liability:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFIT, REPUTATION OR GOODWILL WITH RESPECT TO CLAIMS ASSERTED ON THE BASIS OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO THE SUBSCRIPTION OR THE AGREEMENT (“CLAIMS”), REGARDLESS OF WHETHER A PARTY WAS ADVISED OF OR HAD REASON TO KNOW OF OR ACTUALLY KNEW OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO A CLAIM, REGARDLESS OF THE CAUSE OF ACTION, SHALL EXCEED THE AMOUNTS PAID AND PAYABLE BY SUBSCRIBER TO PARTNER IN CONNECTION WITH THE SUBCRIPTION DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE THAT A CLAIM ARISES. THESE LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NONE OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR TO CLAIMS ARISING OUT OF BREACHES OF SECTIONS 2, 3.1, 4, 5.1, 6 AND ANY ANNEX TO THE SUBSCRIPTION ORDER FORM (IF INCLUDED).
8 - Indemnification:
Intel 471 shall defend, indemnify and hold harmless Subscriber and its directors, officers, employees, successors and assigns from and against all liabilities, damages, losses and costs, including reasonable attorneys’ fees (“Losses”) arising out of third-party claims, actions or proceedings (“Actions”) to the extent based on an allegation that the Subscription infringes or misappropriates such third party’s intellectual property rights; provided, that the foregoing obligations shall not apply with respect to Losses arising from Subscriber’s breach of the Agreement. Subscriber shall defend, indemnify and hold harmless Intel 471 and its directors, officers, employees, successors and assigns from and against all Losses arising out of Subscriber’s breach of the Agreement. Either Party, as an indemnified Party, may participate in the resolution of an Action using its own counsel and at its own expense. Neither Party, acting as indemnifying Party, may settle any Action in a manner that admits fault on behalf of the indemnified Party.
9 - Disclaimer of Implied Warranties:
WITHOUT PREJUDICE TO ANY REPRESENTATIONS OR WARRANTIES SET FORTH IN THE AGREEMENT, THE SUBSCRIPTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND INTEL 471 MAKES NO WARRANTY WITH RESPECT TO THE SUBSCRIPTION OR IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TIMELINESS, ERROR-FREE OPERATION AND ANY WARRANTIES ARISING FROM A USAGE OF TRADE, COURSE OF PERFORMANCE OR COURSE OF DEALING. TO THE EXTENT THAT INTEL 471 MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED BY LAW.
10 - Term and Termination:
10.1 Unless terminated earlier in accordance with its terms, the Agreement shall remain effective from the Effective Date until the later of (i) the last date of the effective period specified on the most recent Purchase Order or (ii) the date that Subscriber loses access to the Subscription (“Term”).
10.2 Either Party may terminate the Agreement in the event that (i) a material breach of the Agreement by the other Party remains uncured for thirty (30) days; (ii) the other Party files a voluntary petition in bankruptcy; (iii) any uncontested pleading seeking reorganization, liquidation or dissolution is filed against the other Party; (iv) an order for relief is entered against the other Party; (v) a receiver is appointed for a substantial part of the assets of the other Party; (vi) an assignment for the benefit of creditors or similar disposition of assets of the other Party is made; or (vii) the other Party ceases to conduct business operations. Intel 471 may temporarily suspend the Subscription or terminate the Agreement upon written notice to Subscriber in the event of a breach of Sections 2, 3.1, 4 or 5.1.
10.3 Upon termination, all rights granted to Subscriber under the Agreement shall cease to be effective and each Party shall, upon the other Party’s written request, promptly return or destroy all materials containing the other Party’s Confidential Information. Nothing herein shall require a Receiving Party to delete a Disclosing Party’s Confidential Information from backup storage; provided, that any such retained Confidential Information remains subject to the protections of Section 6.2 of the Agreement. Sections 3.2, 4, 5, 6, 7, 8, 9, 10.3 and 11 shall survive termination of the Agreement.
11 - General:
11.1 Notices shall be deemed properly given and effective upon actual receipt when delivered (i) by email to a financial or legal representative of a Party; or (ii) by registered or certified mail with postage prepaid and return receipt or by an internationally recognized private courier service to the main business address of the receiving Party.
11.2 Each Party is an independent contractor of the other Party and nothing in this Agreement shall be construed to create a partnership, agency, joint venture or employment relationship between the Parties.
11.3 Neither Party may assign its rights or obligations under the Agreement, voluntarily or by operation of law, without the prior written consent of the other Party; provided, that each Party may assign or transfer this Agreement to a third party, other than a competitor of the other Party, without the other Party’s consent, in connection with a change of control transaction including, but not limited to, a merger or sale of equity interests or substantially all assets. Any assignment or transfer made in violation of the Agreement shall be deemed null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
11.4 Neither Party will have breached the Agreement based on nonperformance resulting from causes beyond such Party’s reasonable control.
11.5 This Agreement shall be governed by and interpreted in accordance with the laws of Delaware, other than its conflict of laws principles. Any proceeding brought in connection with the Agreement or Subscription shall be brought in state or federal courts located in New Castle County, Delaware, and the Parties irrevocably submit to the exclusive jurisdiction of and waive all jurisdictional, venue and inconvenient forum objections to such courts.
11.6 No amendment or modification to, or waiver of, any provision of the Agreement shall be effective unless set forth in writing and signed by authorized representatives of both Parties. Failure of one Party to require performance of the other Party on one occasion shall not affect the right to require performance later and a waiver of any provision of the Agreement once shall not constitute a waiver of any future obligation.
11.7 If any provision of the Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. Any such provision shall be replaced with an enforceable provision that effects the Parties’ intent as closely as possible.
11.8 The Agreement constitutes the entire understanding and agreement of the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements relating to same. Neither Party has relied on any representation or commitment not included in the Agreement as an inducement for entering into the Agreement. As between the Parties, where any terms or conditions included in or referenced on (i) a purchase order or other transactional document related to the Subscription or (ii) any agreement between a Party and a third party conflicts with a term or condition of the Agreement, the Agreement shall prevail.
11.9 The Agreement may be executed in one or more counterparts, each of which is deemed an original, and all of which together constitute one Agreement. Each Party consents to the use of electronic signatures and the exchange of counterparts in digital form.
11.10 Each Party represents and warrants that it has the right, power and authority to enter into the Agreement, to discharge its obligations under the Agreement, and that the person executing the Agreement on its behalf is duly authorized to bind such Party to the Agreement.