Subscription Services Agreement

This Sixgill Subscription Services Agreement (this “Agreement”) governs your use of Sixgill, LLC’s (“Sixgill’s”) subscription services and any related software, code, or documentation made available by Sixgill (collectively, the “Service”). Subject to your acceptance of this Agreement, you may access and use the Service during the Term (as defined below). BY USING THE SERVICE, YOU AGREE ON BEHALF OF YOU AND YOUR ORGANIZATION (TOGETHER, “LICENSEE”) TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT ACCESS OR USE THE SERVICE.

1. LICENSE GRANT

1.1. Scope of Use. Subject to the terms and conditions of this Agreement, Sixgill hereby grants to Licensee, during the Term, a limited, non-exclusive, non-transferable license to access and use the Service.

Certain aspects of your license are governed by the subscription plan you have chosen (your “Subscription Plan”). You can review a summary of the different Subscription Plan levels here. If you are under an Enterprise Subscription Plan, then your use may be subject to additional or different terms (an “Enterprise Agreement”).

1.2. License Restrictions. Licensee may not: (a) copy the Service, including any related software, code, or documentation; (b) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form of the Service; (c) modify, adapt, translate or create a derivative work from the Service; (d) remove any proprietary notices, labels, or marks on the Service; or (e) assign, sublicense, rent, or transfer all or any part of the Service or access to the Service, to any person or entity without the prior written consent of Sixgill.

1.3. Service Restrictions. Licensee may not use the Service in any manner or for any purpose that:
a. violates any local, state, national, or international law or regulation;
b. violates, infringes, or misappropriates any third-party intellectual property rights, personal rights, or rights of privacy or publicity;
c. transmits or would cause the transmission of malware, spyware, software viruses, or any other harmful computer code, files, or programs.

1.4. Access to the Service.
a. Licensee is responsible for acquiring and maintaining, at its sole cost and expense, all telecommunications and Internet services and other hardware and software required to access and use the Service.
b. In order to access and use the Service, Licensee must register and create a unique, password-protected account. Sixgill may reject your registration in its sole discretion.
c. Licensee will take reasonable measures to safeguard its account passwords and log-in information. As between the parties, Licensee shall be solely responsible for any use of the Service under its account, whether authorized by Licensee or not.
d. If Licensee is an individual, you represent and warrant that your at least 18 years of age or the legal age of majority in your jurisdiction.

1.5. Data. Data collected by Sixgill is maintained and shared in accordance with Sixgill’s Privacy Policy. By entering into this Agreement, Licensee consents to the Sixgill Privacy Policy. Licensee acknowledges and agrees that Sixgill may use and disclose data derived from the use of the Services (a) as part of Sixgill’s business operations, on an aggregate, anonymous basis such that any use or disclosure does not permit a third party to associate any particular data with Licensee and (b) if required by applicable law. In addition, Sixgill may use data derived from Licensee’s use of the Service for Sixgill’s internal purposes, including to develop, operate, manage, maintain, and improve Sixgill’s offerings.

1.6. Security. Sixgill will implement and maintain technical and organizational measures appropriate to the nature of data provided by Licensee and generated as a result of Licensee’s use of the Service and will use commercially reasonable efforts to protect such data from unauthorized access, accidental or unlawful destruction, misuse, alteration or disclosure. Each party will use commercially reasonable efforts to notify the other party in the event that third-parties gain unauthorized access to such data.

2. INTELLECTUAL PROPERTY RIGHTS

2.1. The Service. Licensee acknowledges and agrees that, as between Sixgill and Licensee, Sixgill owns and retains all rights, title, and interest in and to the Service and all Sixgill Intellectual Property. This Agreement will not constitute a sale of the Service and no title or proprietary rights to the Service, including any software, code, or documentation, are transferred to Licensee. “Sixgill Intellectual Property” means all of Sixgill’s technology, inventions, discoveries, innovations, know-how, methods, processes, information, trademarks, software, documentation, and interfaces, including all improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, and all Intellectual Property Rights in the foregoing, excluding for the avoidance of doubt any Licensee Materials (as defined below). “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or later in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

2.2. Licensee Materials. Licensee retains all right, title, and interest in and to any data, information, and other materials that Licensee may upload to or connect to, track, audit, or otherwise process using the Service (“Licensee Materials”). As between Sixgill and Licensee and subject to Sixgill’s rights under Section 1.5 above, Licensee is the sole owner of the Licensee Materials and all Intellectual Property Rights in the foregoing.

2.3. Feedback. Licensee agrees that Sixgill is free to use for any purpose whatsoever, ideas, know- how, concepts, techniques, comments, criticisms, reports, or other feedback (collectively, “Feedback”) that Licensee may provide about the Service. Licensee acknowledges and agrees that it has no expectation of compensation or confidentiality of any nature, and that Sixgill has no duties to Licensee (including any duty to compensate for Feedback), with respect to such Feedback.

3. SUPPORT

3.1. Updates. Sixgill will, in its sole discretion, provide new features, corrections, changes and updates as they become available.

3.2. Customer Service. Sixgill provides support in accordance with Licensee’s selected Subscription Plan.

4. PAYMENT

4.1. Invoicing. Licensee shall pay fees to Sixgill in accordance with the applicable Subscription Plan. Sixgill may modify the fees from time-to-time by providing at least 30 days’ prior notice (which may be to the email account provide by Licensee at registration). Licensee’s continued use of the Service following notice of a change to the fees will constitute Licensee’s acceptance of such modifications.

4.2. Payment. Licensee shall be charged fees in accordance with Licensee’s selected Subscription Plan using the credit card information provided at registration. Licensee is responsible for keeping its credit card information up to date. All payments shall be in U.S. Dollars. Except where prohibited by applicable law, payments are non-refundable (including in the event that this Agreement terminates in the middle of a subscription period or if Licensee downgrades or cancels its Subscription Plan).

4.3. Taxes. Licensee is solely responsible for all taxes, fees, duties, and governmental assessments (except for taxes based on Sixgill’s net income) that are imposed or become due in connection with the subject matter of the Agreement.

5. TERM AND TERMINATION

5.1. Term; Cancellation. This Agreement begins on the date that Licensee registers for the Service and continues until earlier terminated as provided in this Section 5 (the “Term”). Each paid Subscription Plan will automatically renew at the end of the applicable subscription period unless Licensee cancels its Subscription Plan prior to the renewal date. Licensee may cancel at any time by clicking here. We will use commercially reasonable efforts to provide Licensee with notice of renewal at least three days prior to the expiration of any applicable trial period of your current plan. We will provide such notice to the email address you provide at the time of registration, as most recently updated by you. Accordingly, it is important that Licensee keep its contact information up to date.

5.2. Termination for Breach. Sixgill may terminate this License immediately upon notice if Licensee breaches any material provision of this Agreement, including Licensee’s payment obligations or any breach by Licensee of Section 1. In such event, Sixgill will have no further obligations to Licensee, other than those provisions that survive the termination of this Agreement.

5.3. Effect of Termination. Upon the effective date of termination of this Agreement for any reasons, the license grant under Section 1.1 shall immediately terminate and Licensee will cease its use of the Service. Sections 1.2, 1.3, 1.5, 2, 4.2 (until all payments are made); 4.3, 6, 7, 8, 9 and 10 of this Agreement and this Section 5.3 will survive termination for any reason. Upon any termination of this Agreement, Licensee shall promptly return to Sixgill any and all Sixgill Proprietary Information (as defined below), including any software and related documentation provided by Sixgill under this Agreement and all copies of the foregoing, or certify to Sixgill that it has permanently deleted or destroyed all of the foregoing.

6. DISCLAIMER

LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS AT ITS OWN RISK. THE SERVICE IS PROVIDED SOLELY ON AN “AS-IS” BASIS. SIXGILL MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. SIXGILL AND ITS LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. NEITHER SIXGILL NOR ITS LICENSORS WARRANTS THAT THE SERVCE WILL BE OPERABLE OR THAT LICENSEE’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.

7. LIMITATIONS OF LIABILITY

7.1. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, FROM THE DISABLING OF THE SERVICE, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY.

7.2. LIMIT ON DIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING OUT OF YOUR USE OF THE SERVICE, EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT FIRST GIVING RISE TO SUCH LIABILITY.

7.3. EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 7 WILL NOT APPLY TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH SUCH OBLIGATIONS); (B) A BREACH BY LICENSEE OF ITS CONFIDENTIALITY OBLIGATIONS; AND (C) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

8. INDEMNIFICATION

8.1. By Sixgill.
8.1.1. Indemnity. Sixgill agrees to defend and hold Licensee and its directors, officers, employees and agents and its respective successors, heirs and assigns (collectively, the “Licensee Parties”) harmless from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon any of them in connection with any third-party claim, action or proceeding (a “Claim”) that the Service as made available to Licensee by Sixgill infringes, violates, or misappropriates the Intellectual Property Rights of a third party. Notwithstanding the foregoing, Sixgill shall have no obligation to indemnify Licensee to the extent that any Claim arises from (a) Licensee’s use of the Service in contravention of this Agreement or any applicable documentation; or (b) the combination or use of the Service with any other software, services, technology, content, or materials that were not provided by Sixgill.
8.1.2. Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that Sixgill, in its sole discretion, reasonably determines, that the Service, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party Intellectual Property Right, Sixgill shall, as Licensee’s sole and exclusive remedy (but without limitation of Sixgill’s obligations under Section 8.1.1), and at Sixgill’s sole discretion, either: (a) obtain a license, at reasonable cost, for Licensee to continue using the Service, or portion thereof; (b) modify the Service while retaining substantively equivalent functionality; (c) replace the affected Service with functionally equivalent software or services; or (d) terminate this Agreement in whole or in part (in which event, Licensee shall immediately terminate use of the Service).
8.2. By Licensee. Licensee shall defend and hold harmless Sixgill, its affiliates and its and their directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Sixgill Parties”) against any Losses incurred by or imposed upon any of them in connection with any Claim (a) arising from or relating to any Licensee Materials (including any Claim that the Licensee Materials infringe, violate, or misappropriate the Intellectual Property Rights of a third party); (b) arising from or relating to Licensee’s use of the Service other than as permitted under this Agreement; or (c) arising from or relating to any breach by Licensee of any third-party agreement, including the terms or conditions governing the use of any third-party platform, network, or service.
8.3. Process. A Licensee Party or Sixgill Party requesting indemnification (the “Indemnified Party”) will (a) provide the party providing indemnification hereunder (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (b) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (c) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Indemnifying Party will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any liability to any Indemnified Party, without the Indemnified Party’s prior written consent.

9. CONFIDENTIALITY

9.1. Confidential Information. Licensee will maintain the strict confidentiality of the Service and all information and materials conveyed by Sixgill to Licensee hereunder, including but not limited to, financial information, pricing information, marketing information and the Service’s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the “Sixgill Proprietary Information”). This undertaking will not apply to information that becomes part of the public domain through no act or omission of Licensee or is in Licensee’s lawful possession prior to the date of this Agreement as demonstrated by written documentation. Licensee shall not use the Sixgill Proprietary Information for any other purpose other than to access and use the Service as provided in this Agreement.

9.2. Non-Disclosure. Licensee will not permit anyone other than its own most trusted employees with a need to know to access or use the Sixgill Proprietary Information. Licensee will not disclose the Sixgill Proprietary Information to any third party and will not use the Sixgill Proprietary Information other than as expressly authorized under this Agreement. Furthermore, Licensee: (a) recognizes that the unauthorized use or disclosure of Sixgill Proprietary Information will give rise to irreparable injury to Sixgill for which monetary damages may be an inadequate remedy; and (b) agrees that Sixgill may seek and obtain injunctive relief against the breach or threatened breach of Licensee’s obligations under this Agreement, in addition to any other legal and equitable remedies which may be available to Sixgill.

10. MISCELLANEOUS

10.1. Choice of Law. This Agreement and any matters relating to it will be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of laws.

10.2. Arbitration. Any action or proceeding arising out of or relating to the Agreement shall be resolved by arbitration in Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. LICENSEE MAY NOT ACT AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY CLAIM. CLAIMS MAY NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR CAN DECIDE ONLY LICENSEE’S INDIVIDUAL CLAIMS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. The arbitrator’s decision in any arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration. Notwithstanding the foregoing, Licensee acknowledges and agrees that in the event that Licensee breaches Section 1 or Section 9 of this Agreement, Sixgill, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.

10.3. Assignment. Licensee may not sublicense, assign, delegate or otherwise transfer this Agreement or any of the related rights or obligations for any reason and any attempt by Licensee to sublicense, assign, delegate or transfer this Agreement or any of the related rights or obligations hereunder will cause the immediate termination of this Agreement. Sixgill may assign this agreement to a corporate affiliate or in connection with a merger, a sale of all or substantially all of Sixgill’s assets or other change of control transaction.

10.4. No Waiver. The failure of Sixgill to insist, in any one or more instances, upon the performance of any term or terms of this Agreement will not be construed as a waiver or relinquishment of its rights to such performance or future performance of such a term or terms, and the obligation of Licensee in respect thereto will continue in full force and effect.

10.5. Severability. In the event that an arbitrator or court of competent jurisdiction determines that any provision or portion of a provision of this Agreement is invalid, unlawful, or unenforceable to any extent, the parties agree that such provision will be deemed to be modified to the minimal extent necessary to make such provision enforceable while still retaining the intent of the parties. In such event, the remainder of this Agreement and its application to other persons will not be affected thereby, and such remaining provisions of this Agreement will continue to be valid and may be enforced to the fullest extent permitted by law.

10.6. Entire Agreement. This Agreement and, if applicable, any Enterprise Agreement to which your organization is a party, constitutes the complete and exclusive statement of the terms and agreement between Sixgill and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect to the subject matter of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of your Enterprise Agreement, the Enterprise Agreement will control.

10.7. Notices. All notices provided under this Agreement shall be in writing, delivered personally, sent by email, or sent by overnight courier, registered or certified mail. Notices to Licensee shall be sent at the contact information provided by Licensee at registration. Notices to Sixgill shall be sent to: Sixgill, LLC, 548 Market Street 22409, San Francisco, CA 94104-5401; email: legal@sixgill.com. All such notices shall be deemed to have been given: (a) upon receipt when delivered personally or (b) upon verification of receipt via email, overnight courier, registered or certified mail.

10.8. Modifications. Sixgill may, in its sole and absolute discretion, change the terms of this Agreement from time to time. All changes to this Agreement will be effective when posted, and we will provide prior notice of such changes to you via the Service or contact information you may have provided to Sixgill upon registration. Your continued use of the Service following any changes to the Agreement will constitute your agreement to be bound by such changes. If you object to any such changes, your sole recourse shall be to stop using the Service.