End-User License Agreement
LAST MODIFIED: March 28, 2019
This End-User License Agreement (this “EULA,” and together with the setup form, subscription agreement or other agreement into which this EULA is incorporated by reference, collectively, the “Agreement”) contains certain terms and conditions on which DarkOwl, LLC, a Colorado limited liability company (the “Company”) grants to the person identified as “Customer” in the Agreement (“Customer”) a limited license to use the Software (as defined below).
If you use the Software on behalf of a company, organization or other entity that has entered into a separate agreement with DarkOwl regarding the use of the Software, that separate agreement will control to the extent of any conflict between this EULA and that separate agreement.
1. Software. The “Software” means all software programs and applications of the Company to which Customer subscribes or that are otherwise provided to Customer by the Company, and includes, without limitation, (as applicable) both the trial and full (paid) versions of such Software, together with any application programming interface, data feed and other access methods provided by the company in connection therewith, and all other associated programs, technology, media, printed materials and online or electronic documentation. The trial version of the Software may be used only to review, test and evaluate the Software for a limited period of time (as further provided in the Agreement), and search results and associated content delivered in connection with the trial version may not be copied or otherwise used by Customer for any other purpose (including providing commercial products or services to others) without the Company’s prior written consent.
2. License. Subject to the other terms and conditions of the Agreement, the Company grants to Customer a non-exclusive, non-transferable, non-sublicensable limited license to use the Software for the purposes contemplated by the Agreement. With respect to the trial version of the Software, that license is limited to use solely for Customer’s evaluation of the Software as provided in Section 1. The Software is provided under license and not sold to Customer, and Customer does not acquire any ownership interest in the Software under the Agreement or any other rights thereto other than to use the Software in accordance with the license herein granted, subject to all terms, conditions and restrictions provided in the Agreement. The Company reserves and will retain its entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to Customer pursuant to this Section 2.
3. Content Accessed via the Software. The search results displayed or returned by the Software in response to Customer’s search queries may contain information referring to or describing content collected from third-party Internet sources, including information located in the surface web, deep web or dark web (“Result Content”). Result Content may include secret, non-public or otherwise sensitive information that is not intended to be published or accessible by Customer or other third parties, and may be illegal for Customer to access or possess. Except as otherwise expressly provided in this EULA, all Result Content is provided without warranty of any kind, express or implied, and the Company is not responsible for any Result Content or liability resulting from Customer’s access or possession thereof.
4. Agreements Regarding Customer’s Use of the Software
4.1. Customer will not, directly or indirectly (i) use the Software, or any Result Content, in violation of any applicable law, (ii) use the Software beyond the scope of the license granted under Section 2, (iii) license, sublicense, rent, lease, lend, sell, assign, distribute, publish, transfer or otherwise make available to any other person the Software, any features or functionality of the Software, or any information generated by or results arising from the operation of the Software, except as otherwise expressly provided in the Agreement, (iv) use any information generated by or results arising from the operation of the Software to harass or impersonate others, (v) use any Result Content in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any person, (vi) use the Software to knowingly access any personal, confidential, secret or other non-public information of any third party without such third party’s permission, (vii) except as specifically authorized by applicable law, harvest or collect any third party’s personal or confidential information, such as credit card numbers, confidential national ID numbers or account passwords, (viii) modify, translate, adapt, copy or otherwise create derivative works or improvements of the Software, (ix) reverse engineer, disassemble, decompile, decode or otherwise attempt to discern or gain access to the source code of the Software, (x) except to the extent contemplated by the Agreement, combine the Software with, or incorporate the Software in, any other program, (xi) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software, (xii) use the Software for purposes of competitive analysis of the Software or the development of a competing software product or service or (xiii) use the Software in any manner that could harm, infect, take over, disable, overburden or otherwise impair any of the Company’s or its service providers’ computer systems.
4.2. Customer will safeguard the Software against infringement, misappropriation, theft, misuse or unauthorized access using the access provided under the Agreement or otherwise by its employees, contractors and representatives and will keep any usernames and passwords associated with its use of the Software confidential. Customer is responsible for all use of the Software occurring under its account. Customer will promptly notify the Company of any unauthorized access of the Software under Customer’s account or disclosure or use of any username or password supplied to it by the Company for access to the Software.
4.3. Customer will comply with any reasonable request by the Company for information in connection with any investigation conducted by the Company to verify Customer’s compliance with this EULA.
5. Termination of License. The Company may, in its sole and absolute discretion, (i) terminate the license herein granted to Customer if Customer breaches the Agreement, or (ii) suspend the license herein granted to Customer if the Company reasonably suspects that Customer has failed to comply with the Agreement, upon reasonably detailed written notice to Customer of such reasonable suspicion, which suspension will last only so long as is reasonably necessary for the Company to conduct an investigation of the suspected noncompliance. The license herein granted to Customer will terminate automatically upon, and in accordance with the terms of, any setup form, subscription agreement or other agreement into which this EULA is incorporated by reference.
7. Limited Warranties. The Company warrants to Customer that (i) the grant of the license made hereunder, and Customer’s use of the Software in accordance with the Agreement and for the purposes contemplated thereunder, will not infringe or otherwise violate the intellectual property rights of any third party, and (ii) in collecting the Result Content, the Company has not knowingly circumvented or breached any security system intended to prevent access to or the publication of such Result Content.
8. Limitations and Exclusions of Liability
8.1. Except as provided in Section 7, the Software is licensed to Customer “as is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, except as provided in Section 7, the company expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Software (including the Result Content), including all implied warranties of merchantability, fitness for a particular purpose, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company gives no warranty or undertaking and makes no representation of any kind that the Software will meet customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any availability, performance or reliability standards, or be free of errors, viruses or other harmful elements.
8.2. In no event will the Company be liable to Customer for any use, interruption, delay or inability to use the software, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to correct, update or provide correct information, system incompatibility or provision of incorrect compatibility information, breaches in system security or any decision made or action taken by Customer in reliance upon results obtained from its use of the Software.
8.3. In no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with the Agreement, breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not such party was advised of the possibility of such damages, in each case except (i) in the case of Customer’s infringement, misappropriation or other violation of the Company’s intellectual property rights associated with the Software and (ii) in connection with the obligations of the parties under Section 9.
8.4. Except in respect of the Company’s obligations under Section 9.2, in no event will the Company’s total liability under or in connection with the Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total amount paid to the Company pursuant to the Agreement in exchange for the license herein granted.
8.5. The limitations set forth in this Section 8 apply even if a party’s remedies under the Agreement fail of their essential purpose.
9.1. Customer will indemnify, defend and hold harmless the Company and its affiliates, and each of their respective employees, officers, directors, managers, contractors, equity holders, agents and representatives, from any claim of any third party to the extent resulting from Customer’s breach of this EULA or Customer’s alleged violation of applicable law in connection with its use of the Software.
9.2. The Company will indemnify, defend and hold harmless Customer and its affiliates, and each of their respective employees, officers, directors, managers, contractors, equity holders, agents and representatives, from any claim of any third party to the extent resulting from the Company’s breach of the limited warranties provided in Section 7.
9.3. Any party entitled to indemnification or other benefits under Section 9.1 or Section 9.2 (the “Indemnified Party”) will give prompt written notice to the party obligated to provided such indemnification or other benefit (the “Indemnifying Party”) of any third party claim that is the subject of such indemnification or other benefit, provided that any delay in giving such notice will not limit the Indemnified Party’s rights under this Section 9 except to the extent the Indemnifying Party is actually prejudiced by such failure. The Indemnifying Party will have the right, but not the obligation, upon written notice to the Indemnified Party no later than 30 days after the Indemnifying Party’s receipt of notice of such third party claim, to assume the conduct and control of the settlement or defense of the third party claim, through counsel of its choice reasonably satisfactory to the Indemnified Party, and at the expense of the Indemnifying Party. The Indemnified Party will reasonably cooperate with the Indemnifying Party and its counsel in connection therewith, and the Indemnifying Party will permit the Indemnified Party to participate in such settlement or defense through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel will be borne solely by such Indemnified Party. If the Indemnifying Party does not notify the Indemnified Party in writing within 30 days after its receipt of notice of the third party claim that it elects to undertake the defense of the third party claim, or otherwise fails to comply with its obligations under this Section 9.3, then the Indemnified Party will have the right to conduct and control the settlement or defense of third party claim but will not thereby waive any right under this Section 9 in connection therewith. Any settlement or compromise of any third party claim by either party will require the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed.
10. Export Regulation. The Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, or to any other jurisdiction outside of the United States without the Company’s prior written consent (including as provided in the Agreement). Customer will comply with all applicable law and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to Customer exporting, re-exporting, releasing or otherwise making the Software available outside the United States.
11.1. The Agreement is governed by and will be construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or related to the Agreement or the license granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the city of Denver and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth in the Agreement will be effective service of process for any suit, action or other proceeding brought in any such court.
11.2. The Agreement constitutes the sole and entire agreement between Customer and the Company with respect to the subject matter thereof, and supersedes all prior and contemporaneous negotiations, understandings and agreements, whether written or oral, between the parties with respect to such subject matter. In the event of any conflict between the provisions of this EULA and those of any other agreement between Customer and the Company in respect of the Software, the provisions of this EULA will control.
11.3. Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the Company’s prior written consent, which consent the Company may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under the Agreement for which the Company’s prior written consent is required.
11.4. The Agreement is for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
11.5. The Agreement may be amended only by a written instrument signed by each of the parties thereto.
11.6. No waiver by any party of any of the provisions of the Agreement will be effective unless expressly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.7. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
EEA Customer Addendum
LAST MODIFIED: September 27, 2017
This EEA Customer Addendum (the “Addendum”) is attached to and forms part of the End User License Agreement (the “EULA”) between DarkOwl, LLC, (“DarkOwl” or the “Company”) and the customer identified in the EULA if that customer is located in the European Economic Area (“Customer”). This Addendum is effective for all purposes on the date Customer executes the EULA (hereinafter, DarkOwl and Customer are, at times, referred to individually as a “Party” and jointly as the “Parties”).
WHEREAS, the Parties have entered into the EULA whereby DarkOwl licenses the Software (as defined in the EULA) to Customer;
WHEREAS, the Software allows Customer to access DarkOwl’s database of information drawn from publicly available sources (the “Database”) which may contain Personal Data (defined below) belonging to Customer that relates to individuals located in the European Economic Area (“EEA”);
NOW THEREFORE, for good and valuable consideration, the adequacy and sufficiency of which hereby are acknowledged, the Parties agree as follows.
1.1. “Data Controller” means the natural or legal person, public authority, agency or any other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
1.2. “Data Processor” means a natural or legal person, public authority, agency or any other body which Processes personal data on behalf of the Data Controller.
1.3. “Data Subject” means an identifiable natural person who is a citizen of the E.E.A.
1.4. “Personal Data” means any information identifying, directly or indirectly, a Data Subject in particular by reference to an identification number or to one or more factors specific to the Data Subject’s physical, physiological, mental, economic, cultural or social identity.
1.5. “Processing”, and the grammatical variants thereof, mean any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as searching, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
2. Ownership of personal data in database
2.1. Customer is the Data Controller of any Personal Data in the Database that originated from Customer (“Customer Database Personal Data”).
2.2. To the extent DarkOwl Processes Customer Database Personal Data, OWL is acting as Customer’s Data Processor.
3. Customer’s responsibilities
3.1. Customer will formulate searches of the Database designed to retrieve only Customer Database Personal Data and will make reasonable efforts to avoid unnecessarily accessing Personal Data other than Customer Database Personal Data.
3.2. If Customer accesses any Personal Data other than Customer Database Personal Data in the Database, Customer will not copy, transmit, reproduce, use, disclose, or otherwise Process that Personal Data. If Customer inadvertently copies or downloads any Personal Data from the database other than Customer Database Personal Data, Customer will promptly dispose of that data in a manner that renders it unrecoverable.
3.3. Customer will comply with its obligations under applicable data protection law as Data Controller with respect to a) Customer Database Personal Data, and b) any Personal Data in search terms that Customer enters into the Software (collectively, “Customer Personal Data”).
4. DarkOwl’s Responsibilities
4.1. To the extent practicable, DarkOwl will use commercially reasonable efforts to implement technical and organizational measures to protect Customer Personal Data against accidental or unlawful disclosure or access, and to provide a level of security appropriate to the risk represented by the Processing and the nature of the Customer Personal Data.
5.1. Indemnification. Customer shall defend and indemnify DarkOwl, its parent and subsidiary corporations, officers, directors, employees and agents for any and all claims, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by DarkOwl and/or its parent or subsidiary corporations, officers, directors, employees and agents resulting from (a) any misuse of Personal Data not permitted by this Addendum or applicable data protection law, and (b) any other breach by Customer of this Addendum.
5.2. No Third-Party Beneficiaries. No third party shall be considered a third-party beneficiary under this Addendum, nor shall any third party have any rights as a result of this Addendum.
5.3. Construction; Effect of Addendum. To the extent that any of the terms or conditions contained in this Addendum may contradict or conflict with any of the terms or conditions of the EULA with regard to Personal Data, the terms of this Addendum shall take precedence and supersede the EULA.