AS OF JUNE 1, 2021
MUTUAL NON-DISCLOSURE AGREEMENT AND FREE EVALUATION
THIS MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (“Agreement”) is made between Human Security, Inc., (f.k.a. “White Ops”) with offices located at 111 W. 33rd Street, 11th Floor, New York, NY 10001 (“HUMAN”) and Company with offices located at its respective locations (together with its / their corporate affiliates, if any, “Collaborator”). Hereinafter, HUMAN and Collaborator are collectively referred to as the “Parties” or individually referred to as “Party.”
- Confidential Information. For the purposes hereof, "Confidential Information" means any information or data disclosed by a Party (the "Disclosing Party'') to the other Party (the "Recipient") with which (a) if in tangible form or in other media that can be converted to readable form is clearly marked as proprietary, confidential or private when disclosed, or (b) if oral or visual, is identified as proprietary, confidential, or private when disclosed, or (c) by its very nature constitutes information of a type that any reasonable business person would conclude was intended to be treated as proprietary, confidential, or private, regardless of whether such information was marked or identified as such. Confidential Information may include any business, technical, financial or strategic planning information, market share, trade secrets, inventions, copyrights, know-how, marketing, computer and security systems or other compilations of information which are used in the Disclosing Party’s business which includes, but is not limited to, databases and database management systems, software and software management, source code, customer lists and other information relating to same, pricing or financial information, intangible property and other such information or intellectual property which is not in the public domain.
- Affiliates. The terms “Disclosing Party” and “Recipient” include each Party’s corporate affiliates that may disclose or receive Confidential Information.
- Non-disclosure and Proprietary Information Protection. The Recipient shall, and shall cause its employees, its affiliates, and the employees of its affiliates to use the Confidential Information only for the purpose(s) set forth above and not for any other purpose. Recipients shall instruct its employees and affiliates to treat the Confidential Information with at least the same degree of care to avoid disclosure as is used with respect to the Recipient’s own information.
- Exclusions. Confidential Information does not include, and the provisions of this Agreement shall not apply to, any information which is available to the public or becomes available to the public through no breach of this Agreement; was previously known by the Recipient without any obligation to hold it in confidence; is received from a third party free to disclose such information without restriction; is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or is approved for release by written authorization of the Disclosing Party, but only to the extent of such authorization. If the Recipient is required by judicial or administrative action (e.g., subpoena, order), law, or regulation to disclose Confidential Information of the Disclosing Party, then the Recipient may do so, but only to the extent so required. In such event, the Recipient shall give prompt notice to the Disclosing Party of the requirement for disclosure in order to allow the Disclosing Party an opportunity to seek an appropriate protective order.
- Ownership. Confidential Information, including permitted copies, shall be deemed the exclusive property of the Disclosing Party. The Recipient shall, within five (5) business days of a written request by the Disclosing Party return all Confidential Information, or if so directed by the Disclosing Party, destroy such Confidential Information. Upon completion of the foregoing, the Recipient shall notify the Disclosing Party in writing that it has satisfied its obligations under this paragraph.
- Remedies. The parties agree that an impending or existing violation of any provision of this Agreement may cause the other irreparable injury for which it may have no adequate remedy at law, and agree that the Disclosing Party shall be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it, without the need to post a bond. The remedies set out in this paragraph shall survive the termination of this Agreement.
- No Employment Relationship. It is understood and acknowledged that this Agreement shall not create an employment relationship. Neither party will create or assume any obligation, express or implied, on behalf of the other party.
- Term and Termination. This Agreement shall be effective as of the date of the last signature below and shall continue until the first anniversary thereof unless earlier terminated by either Party upon thirty (30) days prior written notice. All obligations undertaken respecting each portion of the other Party’s Confidential Information disclosed hereunder shall survive termination of this Agreement until such time as such portion is excluded from the definition of Confidential Information in accordance with Paragraph 4 hereof.
- Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other. Notwithstanding the foregoing, either Party may assign its rights under this Agreement to the successor-in-interest of substantially all of that Party’s business to which this Agreement pertains, provided that those to whom such Party assigns such rights also undertake the assigning Party’s duties under this Agreement.
- Notices. Any notice required or permitted to be given hereunder shall be effective when received and shall be sufficient if in writing and if personally delivered or sent by electronic communication, overnight courier or certified mail, return receipt requested, to the other Party to receive such notice at its address set forth at the beginning of this Agreement or at such other address as a Party may by notice specify to the other.
- Authority. Each Party warrants and represents to the other that it possesses all necessary powers, rights and authority to lawfully make any disclosure subject to this Agreement and that the person signing this Agreement on behalf of the Party and its corporate affiliates has been properly authorized to enter into this Agreement. Each Party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions.
- Counterparts, Scanned Electronic and Facsimile. This Agreement or any Attachment may be modified only by a mutually executed amendment. This Agreement is not enforceable unless properly executed by both Parties. Electronic signatures shall be deemed valid and binding.
- Legal. The provisions of this Agreement may not be modified, amended, or waived, except by a written instrument duly executed by both parties. If any provision of this Agreement shall be held invalid or unenforceable, such provision shall be deemed deleted from this Agreement. The remaining provisions of this Agreement shall continue in full force and effect.
- Governing Law. This Agreement shall be construed with regard to and governed by the laws of the State of New York without giving effect to the conflict of laws provisions thereof.
TERMS OF SERVICE FOR FREE EVALUATION
Term. The Term of this free Evaluation shall be for a period of thirty days (30) and shall not exceed sixty days (60) unless terminated by the terms herein or extended by the Parties via written notice (“Term”).
Services; Detection. Application Integrity. If “Detection” is selected on the Evaluation Form, the Customer will deploy a detection tag on the website properties that they wish to monitor. This tag will then collect information necessary to determine whether a specific interaction from the website is the result of human or bot activity. Each detected bot interaction with the Customer website can be sent back to the Customer for use in their mitigation activities (collectively, “Detection”). If “Mitigation Vesper” is selected, the Customer will implement a server to server integration with HUMAN to enable the enforcement of (either allow, delay, block or deceive (“Prevention”) bot activity (“Application Integrity”).
Services; Marketing Integrity. If “Marketing Integrity” is selected on the Evaluation Form, the Customer will deploy a detection tag on the website properties that they wish to monitor. This tag will then collect information necessary to determine whether a specific interaction from the website is the result of human or bot activity. Lastly, each detected bot interaction with the Customer website can be sent back to the Customer for use in their mitigation activities (“Marketing Integrity”).
Platform. As used herein, the term “Platform” means all of HUMAN technology used in Detection and Prevention deployment and performance of Services, including without limitation; Detection Tags, Detection Events, Prevention Lookups, the Reporting Methods, and all other components of HUMAN’S technology and Services.
Platform Generated Data. HUMAN will deliver or make available Platform Generated Data to Customer in the form of: (i) aggregated results on internet activity from the detection tag (“Standard Reporting”); and, only if “Transaction-Level Reporting” is selected on the Scope of Services section of the Evaluation Form, (ii) additional log-level results by user, cookie, device-ID, or other event ID (“Transaction-Level Reporting”).
HUMAN Owns Platform and Platform Generated Data. As between HUMAN and Customer, HUMAN alone owns the Platform, the Platform Generated Data, and all intellectual property rights therein, including without limitation all modifications and improvements thereto, whether suggested by Customer or otherwise.
No Modification by Customer. Customer will not: (i) reproduce, modify, or make derivative works of any portion of the Platform or the Platform Generated Data; (ii) reverse engineer, decompile, disassemble, or attempt to derive the source code form or internal logic of any software portion of the Platform provided by HUMAN in object code form only; or (iii) alter, obscure, or remove any HUMAN branding, proprietary notices situated within the Platform or Platform Generated Data.
Grant of License from Customer to HUMAN. Customer hereby grants to HUMAN the limited, nonexclusive, revocable, non-sublicensable right and license to access and use Customer Data solely to the extent necessary for HUMAN (i) to perform the Services under this Agreement, (ii) to improve service performance. HUMAN will not reproduce, modify, make derivative works of, publicly display, transfer, sell, or permit access to any Customer Data by any entity other than Customer or HUMAN (a “Third Party”).
Grant of Licenses from HUMAN to Customer. Subject to all of the provisions hereof, HUMAN hereby grants to Customer the limited, nonexclusive, revocable, non-sublicensable right and license to access and use the Platform in accordance herewith and to use the Platform Generated Data within Customer’s internal divisions and departments solely for Customer’s own internal purposes.
Customer Owns Customer Data. As between HUMAN and Customer, Customer alone owns the Customer Data and all intellectual property rights therein.
Remedies. Insomuch as Receiving Party acknowledges that disclosure or misuse of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, upon any actual or threatened misuse or disclosure of Confidential Information by Receiving Party, Disclosing Party shall be entitled to seek appropriate equitable relief without necessity of posting bond in addition to whatever other remedies it might have at law.
Ownership. It is understood that no patent, copyright, trademark or other proprietary right or license is granted by this Agreement. Neither party makes any claims to any of the other party's data, patents, brand features, software, copyrights, tradenames, trademarks, confidential information or other intellectual property of any kind (a party's "IP") revealed during the term of this Agreement or any applicable Exhibit or SOW, except that any changes or improvements made to the Platform or Services during the term, at Customer’s suggestion or otherwise, shall be HUMAN’S sole property, and Customer shall have no rights, intellectual property or otherwise, thereto. The disclosure of IP, any Confidential Information as described and above, and/or any materials that may accompany such disclosure shall not result in any obligation to grant the Recipient rights therein.
Termination for Cause. Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement, (ii) misuses the other party’s trademarks; (iii) misuses the other party’s platform, data or any confidential information. During said cure period if Customer is in breach, then HUMAN may immediately suspend or limit Customer’s access to the Platform.
Indemnification by HUMAN. HUMAN shall indemnify, defend, and hold harmless Customer and its affiliates, and the officers, directors, and employees of each, from and against any Third Party claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a Third Party based upon Customer’s use of the Platform, Services, or Platform Generated Data. If Customer’s use of the Platform, Services, or Platform Generated Data is, or in HUMAN’S opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, HUMAN may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Platform, Services, and Platform Generated Data; or, if (i) and (ii) are commercially impracticable, (iii) terminate this Agreement The foregoing indemnification obligation of HUMAN shall not apply to the extent that: (1) the Platform, Services, or Platform Generated Data are modified by any party other than HUMAN; (2) the Platform, Services, or Platform Generated Data are used in an unauthorized way or combined with other non-HUMAN products or processes not authorized by HUMAN; or (3) the applicable action arises as a result of any third-party deliverables or components contained within the Platform, Services, or Platform Generated Data.
Indemnification by Customer. Customer shall indemnify, defend and hold harmless HUMAN, its affiliates, and the officers, directors and employees of each, from and against all Third Party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of any breach of Customer’s covenants, obligations, representations, or warranties hereunder, or any act or omission of Customer constituting gross negligence or willful misconduct.
Marketing & Publicity. Each party shall obtain the other party’s express written authorization prior to making any public statement in any form, written, oral, or otherwise, regarding the nature of the relationship between the parties or the contents of this Agreement, or including the other party’s name, logo, or other intellectual property in its publicity materials. HUMAN reserves the right to respond to and if necessary correct any unauthorized or inaccurate public statement made by Customer concerning HUMAN.
Legal. This Agreement shall be governed and enforced under the laws of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions hereunder shall be the state and federal courts in New York, New York. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. Remedies hereunder shall be cumulative. Neither party shall be liable to the other for any consequential, punitive, or other special damages. HUMAN’S TOTAL LIABILITY TO CUSTOMER HEREUNDER SHALL NOT EXCEED $10,000 USD.