End-User License Agreement
LAST MODIFIED: july 10, 2017
This End-User License Agreement, including the information you submitted (whether online or otherwise) or otherwise agreed to in connection with the registration process you completed with respect to the Software (as defined below), which by this reference is incorporated herein (hereinafter, this EULA), is a binding agreement between DarkOwl, LLC, a Colorado limited liability company (hereinafter, DarkOwl or the Company) and the person identified as the “Customer” in connection with the registration process (hereinafter, Customer).
DARKOWL PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM.
ACCEPTANCE OF TERMS
1.1 BY SUBMITTING YOUR REGISTRATION FOR THE SOFTWARE OR BY USING THE SOFTWARE, YOU (A) ACCEPT THIS EULA AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS.
2.1. For purposes of this EULA, “Software” means both the trial and full (paid) versions of the DarkOwl Vision Professional Tools proprietary application owned and supplied by OWL and its application programming interface, technology, associated media, printed materials, and online or electronic documentation. The trial version of the Software is to be used only to review, test and evaluate the Software and its operation for a limited period of time, and search results and associated content delivered in connection with the trial version may not be copied or otherwise used by Customer for any business purpose (other than to review, test and evaluate the Software) without the Company's written consent. The trial version offers limited features and shall cease to operate once the limited period of time is elapsed.
2.2. Subject to the terms and conditions of this EULA, DarkOwl hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable limited license to use the Software. With respect to the trial version of the Software, that license is limited to use solely for Customer’s review, test and evaluation and with the further purpose of eventually deciding the future purchase of a full version of the Software. The use of the Software will be made at Customer’s own risk.
2.3. Customer acknowledges and agrees that the Software is provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software under this EULA, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this EULA. OWL reserves and shall 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 Section 2.2. Customer shall safeguard the Software (including all copies thereof) against infringement, misappropriation, theft, misuse or unauthorized access.
OPERATION OF SOFTWARE
3.1. Upon acceptance of this EULA, the Software will permit Customer to search Internet content collected from sources located in the surface web as well as the deep or dark web. The Software may identify and obtain results solely based on the information input by Customer, including secret, non-public or otherwise sensitive information of Customer.
RESTRICTIONS ON USE
4.1. Customer shall not, directly or indirectly:
(a) use the Software, or any results arising from the operation of the Software, in violation of any applicable local, state, national, or international law, regulation or rule;
(b) use (including make any copies of) the Software beyond the scope of the license granted under Section 2.2;
(c) 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, other than such information or results contained in any report prepared by Customer for use solely by a specific client of Customer in connection with an existing consulting relationship between Customer and such client;
(d) use any information generated by or results arising from the operation of the Software to harass or bully others or to impersonate others;
(e) use any material or information made available through the Software in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party;
(f) use the Software to knowingly access any confidential or other non-public information of any third party without such third party’s permission;
(g) except as permitted by applicable law, harvest or collect other people’s personal and confidential information, such as credit card numbers, confidential national ID numbers or account passwords;
(h) modify, translate, adapt or otherwise create derivative works or improvements of the Software or any part thereof;
(i) reverse engineer, disassemble, decompile, decode or otherwise attempt to gain access to the source code of the Software or any part thereof;
(j) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(k) 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;
(l) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to DarkOwl’s commercial disadvantage; or
(m) use the Software in in any manner that could harm, infect, take over, disable, overburden, or otherwise impair any of DarkOwl’s computer systems.
TERMINATION OF LICENSE
5.1. Customer acknowledges and agrees that DarkOwl, in its sole discretion and without notice, may terminate the license granted to Customer under Section 2.2 if Customer fails to comply with, or DarkOwl reasonably suspects Customer’s failure to comply with, any of the terms and conditions set forth in this EULA or any reasonable request by DarkOwl for information in connection with any investigation conducted by DarkOwl to verify such compliance, and DarkOwl shall not be liable to Customer or any third party for such termination.
5.2. Customer acknowledges and agrees that the license granted to Customer under Section 2.2 shall terminate automatically upon, and in accordance with the terms of, any subscription or other agreement between DarkOwl and the Customer in respect of the Software, which, absent any provisions of such agreement to the contrary, Customer may terminate only upon 60 days’ advance written notice to DarkOwl.
RESPONSIBILITY FOR USE OF SOFTWARE
6.1. Customer is responsible and liable for all uses of the Software occurring under its account as well as for the username and passwords provided to it to access the Software, which Customer agrees to keep confidential. Customer agrees to manage all usernames and passwords provided to Customer to access the Software and will promptly notify DarkOwl to deactivate a username and password if appropriate. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software by any person to whom Customer may provide access to or use of the Software, whether such access or use is permitted by or in violation of this EULA.
COLLECTION AND USE OF INFORMATION
7.1. Customer acknowledges that DarkOwl may, directly or indirectly through the services of one or more third parties, collect and store information about Customer obtained during the online registration process or otherwise input by Customer in connection with Customer’s use of the Software as well as information regarding Customer’s use of the Software, results generated by the Software in response to Customer inputs and the computing environment (including information related to hardware, software, Internet connectivity and user identity or location) by which Customer accesses and uses the Software.
(a) improving the performance of the Software or developing updates;
(b) marketing or promoting the Software or related DarkOwl products and services (but solely to the extent such information could not be used to identify Customer or any user of the Software);
(c) verifying Customer’s compliance with the terms of this EULA; and
(d) enforcing DarkOwl’s rights, including all intellectual property rights in and to the Software, or the rights of others.
7.4 Customer acknowledges and agrees that DarkOwl may use Customer’s identity in DarkOwl’s promotional materials or otherwise to publicize, market or promote DarkOwl’s products and services.
LIMITATION AND EXCLUSION OF LIABILITY
8.1. THE SOFTWARE IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY OR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED 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 PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8.2. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL THE COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (1) 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 UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, (2) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS EULA, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (3) ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER IN RELIANCE UPON RESULTS OBTAINED FROM ITS USE OF THE SOFTWARE.
(b) IN NO EVENT WILL THE COMPANY’S LIABILITY UNDER OR IN CONNECTION WITH THIS EULA 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 THIS EULA FOR THE SOFTWARE.
(c) THE LIMITATIONS SET FORTH IN THIS SECTION 7.2 APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.
8.3. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, SHAREHOLDERS AND EMPLOYEES, FROM ANY CLAIM MADE BY ANY THIRD PARTY DUE TO OR ARISING DIRECTLY OR INDIRECTLY OUT OF CUSTOMER’S MISUSE OF THE SOFTWARE, ANY ALLEGED VIOLATION OF THIS EULA AND ANY ALLEGED VIOLATION OF ANY APPLICABLE LAW OR REGULATION.
US GOVERNMENT RIGHTS
9.1. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
10.1. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall 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, rule or regulation. Customer shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software available outside the US.
11.1. This EULA is governed by and 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 this EULA or the license granted hereunder shall 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 herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
11.2. This EULA, together with the information you submitted (whether online or otherwise) or otherwise agreed to in connection with the registration process you completed with respect to the Software, constitutes the sole and entire agreement between Customer and DarkOwl with respect to the subject matter hereof, 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 DarkOwl in respect of the Software, the provisions of this EULA shall control.
11.3. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, 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 this EULA for which the Company’s prior written consent is required.
11.4. This EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA.
11.5. DarkOwl reserves the right to update and make changes to this EULA from time to time. Any material changes will take effect immediately as soon as Customer accesses the Software through its account. If Customer does not agree to any such changes, it must immediately discontinue using the Software, and Customer’s continued use of the Software after any such change shall represent Customer’s agreement to the EULA as so changed.
11.6. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall 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 this EULA is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.
EEA Customer Addendum
LAST MODIFIED: September 30, 2016
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 OWL Processes Customer Database Personal Data, DarkOwl 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.