HiddenLayer is the leading provider of Security for AI. Its security platform helps enterprises safeguard the machine learning models behind their most important products. HiddenLayer is the only company to offer turnkey security for AI that does not add unnecessary complexity to models and does not require access to raw data and algorithms. Founded by a team with deep roots in security and ML, HiddenLayer aims to protect enterprise’s AI from inference, bypass, extraction attacks, and model theft. The company is backed by a group of strategic investors, including M12, Microsoft’s Venture Fund, Moore Strategic Ventures, Booz Allen Ventures, IBM Ventures, and Capital One Ventures.
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS ON WHICH HIDDENLAYER, INC. (“HIDDENLAYER”) IS WILLING TO ALLOW YOU OR THE ENTITY YOU REPRESENT (THE “LICENSEE”) (EACH, A “PARTY”, AND TOGETHER WITH HIDDENLAYER, THE “PARTIES”) TO ACCESS AND USE CERTAIN SOFTWARE, PRINTED MATERIALS, AND ONLINE OR ELECTRONIC DOCUMENTATION (THE “LICENSED MATERIALS”, AS FURTHER DEFINED BELOW). BY CLICKING THE “AGREE” BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE LICENSEE AND AGREE THAT THE LICENSEE IS BOUND BY THIS AGREEMENT WITH HIDDENLAYER, UNLESS A SEPARATE WRITTEN AGREEMENT IS IN EFFECT THAT SPECIFICALLY GOVERNS THE SUBJECT MATTER HEREOF. IF YOU CANNOT MAKE SUCH WARRANTY OR IF LICENSEE DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE LICENSED MATERIALS.
DEFINITIONS
1.1. Affiliates means all entities that control, are controlled by, or are under common control with the named entity, whether directly or through one or more intermediaries. For purposes of this definition, “controlled” and “control” shall mean ownership of more than fifty percent (50%) of the voting capital stock or other similar majority interest having voting rights with respect to the election of the board of directors or similar governing authority.
1.2. Authorized Users means employees, agents, consultants, contractors, or vendors authorized by Licensee to use the Licensed Materials solely for the internal use of Licensee and its Affiliates, subject to the terms and upon the conditions of this Agreement.
1.3. Confidential Information means all information and materials furnished by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) before, on or after the Effective Date, whether such is transmitted in writing, orally, visually (e.g. video terminal display) or on magnetic media, which (a) if in written format, is marked as confidential; (b) if disclosed verbally, is noted as confidential at the time of disclosure; or (c) is information which a reasonable person would understand to be non-public information or confidential in nature. Confidential Information includes, without limitation: the Licensed Software; HIDDENLAYER reference designs; Documentation; the existence and contents of this Agreement; and all proprietary information, customer and prospect lists, trade secrets, or proposed trade names, know-how, ideas, concepts, designs, drawings, flow charts, diagrams and other intellectual property relating to the subject matter of this Agreement. Results of any tests or usages carried out by Licensee with the Licensed Software will also be considered HIDDENLAYER Confidential Information. Confidential Information does not include information that the Receiving Party can establish (i) is generally available to the public at the time of disclosure or thereafter becomes generally available to the public through no fault of the Receiving Party, (ii) is in the lawful possession of the Receiving Party prior to the time of disclosure without any obligation of confidentiality to the Disclosing Party, (iii) is rightfully received by the Receiving Party from a third party without any obligation of confidentiality and not in breach of its obligations of confidentiality to the Disclosing Party hereunder, or (iv) is developed by the Receiving Party without reference to and independently of the Confidential Information of the Disclosing Party.
1.4. Data Protection Laws means all applicable laws and regulations relating to data protection, information security use of electronic data, marketing, and privacy matters, including without limitation, the General Data Protection Regulation (EU) 2016/679 (“GDPR”); Privacy and Electronic Communications (2002/58 EC) Directive 2003 as amended including the European Cookie Directive 2009/136/EC and (EU) E-Privacy Regulation (as and when effective); and all applicable data protection laws, regulations and guidance where the Licensed Materials are provided.
1.5. Documentation means any and all user documentation and other reference materials, in any form and on any media, that may be provided by HIDDENLAYER in connection with or in reference to the Licensed Software from time to time, including, without limitation, user guides, installation documents and specifications for the Licensed Software. For the avoidance of doubt, “Documentation” shall not include any sales or marketing materials.
1.6. Effective Date means the date Licensee expresses assent to the terms of this Agreement.
1.7. Feedback has the meaning set forth in Section 4.3.
1.8. Fees has the meaning set forth in Section 5.
1.9. Force Majeure Event means any of the following: (i) fire, explosion storm, earthquake, hurricane, tornado, drought, flood, typhoon, tsunami or other act of God; (ii) war, act of terrorism, sabotage, bombing, insurrection, rebellion, revolution, riot or other civil commotion or unrest; (iii) epidemics, quarantine restrictions or other public health restrictions or advisories; (iv) strikes or lockouts or other labor interruptions; (v) disruption to local, national or international transport services; (vi) events which threaten public safety or create substantial disruption in commercial activity; or (vii) any other event that is beyond the reasonable control of either Party.
1.10. Indirect Order means an Order for the Licensed Materials from a resale partner of HIDDENLAYER.
1.11. Indirect Taxes means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes on turnover and/or revenues, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal, state or province).
1.12. Intellectual Property Rights means all intellectual property rights of any kind or nature in any jurisdiction throughout the world, including all right, title and interest in or to the following: (a) patents, (b) trademarks, service marks, trade dress, trade names and internet domain names, together with the goodwill associated exclusively with such trademarks, service marks, trade dress, trade names and internet domain names, (c) copyrights, including copyrights in computer software, (d) registrations and applications for registration for any of the foregoing under clauses (a) through (c) of this definition, including any extensions, continuations, continuations-in-part, reissues, divisions and reexaminations, (e) confidential and proprietary information, including trade secrets and rights in know-how, (f) intellectual property rights in computer software, design, data and databases and (g) all rights to sue and recover damages and obtain equitable relief for past, present and future infringement, misappropriation or other violations of any of the forgoing under clauses (a) through (f) of this definition.
1.13. Licensed Materials means the Licensed Software and Documentation.
1.14. Licensed Software means HIDDENLAYER’s AISec Platform owned by HIDDENLAYER or which HIDDENLAYER otherwise has the right to use, including the AI Detection and Response and the ML Model Scanner and patches, updates, upgrades, modifications or new releases thereof that may be provided by HIDDENLAYER to Licensee from time to time during the Term.
1.15. Licensee Data means all data and/or content uploaded to the Licensed Software by Licensee and its Affiliates (including, where applicable, Authorized Users), and in all data derived from it. For the avoidance of doubt, Licensee Data does not include Usage Data.
1.16. Notice means any notice or other communication required or permitted under this Agreement.
1.17. Order means HIDDENLAYER’s quote accepted by Licensee via Licensee’s purchase order or other ordering document received by HIDDENLAYER (directly or indirectly through a resale partner) to order the Licensed Materials, which references the Licensed Materials, pricing, payment terms, quantities, expiration date and other applicable terms set forth in an applicable HIDDENLAYER quote or ordering document.
1.18. Permitted Use means internal use of the Licensed Software by and for the sole benefit of Licensee, in accordance with the Documentation, in the ordinary course of its business operations and upon the conditions and subject to the terms of this Agreement.
1.19. Representatives means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
1.20. Term has the meaning specified in Section 7.1.
1.21. Third-Party Material means materials and information, in any form or medium, that are not proprietary to HIDDENLAYER and that are distributed with or incorporated into the Licensed Software.
1.22. Trial Service has the meaning set forth in Section 4.1.
1.23. Trial Service Period has the meaning set forth in Section 4.1.
1.24. Usage Data means data generated in connection with Licensee’s access, use and configuration of the Licensed Software and data derived therefrom (e.g., types of applications or accounts utilized or interacting with the Licensed Software).
1.25. Warranty Period has the meaning set forth in Section 10.
GRANT OF LICENSE; RESTRICTIONS ON USE
2.1. Subject to the terms and upon the conditions of this Agreement, HIDDENLAYER hereby grants to Licensee a non-exclusive, non-sublicensable and non-transferable right to install, access and use, and permit Authorized Users to access and use, the Licensed Materials solely for the Permitted Use during the Term. Licensee will have no right to receive, access or review the source code version of any portion of the Licensed Software. HIDDENLAYER RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT.
2.2. Acknowledging that such actions are outside the scope of the license granted herein, except as this Agreement expressly permits, Licensee will not (and will not allow any third party or Authorized User to), directly or indirectly : (a) copy or otherwise reproduce the Licensed Materials; (b) publicly demonstrate or distribute the Licensed Software or its components; (c) assign, sell, resell, sublicense, rent, lease, distribute, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Licensed Software; (d) remove or modify any product identification, markings, copyright or other notices from the Licensed Materials (including, but not limited to, any notice of HIDDENLAYER’s or any third party licensor’s or its licensor’s proprietary rights); (e) interfere with or disrupt the performance of any part of the Licensed Software; (f) incorporate the Licensed Software into or with other software; (g) use the Licensed Software or any HIDDENLAYER Confidential Information to market, sell, or distribute any product or service that includes the Licensed Software; (h) use or access the Licensed Software or any HIDDENLAYER Confidential Information in order to build a competitive product or service; (i) use the Licensed Materials in a manner that infringes the Intellectual Property Rights, publicity rights or privacy rights of any third party, or to store or transfer defamatory, trade libelous or other unlawful data; (j) except as otherwise may be agreed by the Parties in writing, store in or process with the Licensed Materials any personal health data, credit card data, personal financial data or other such sensitive regulated data not required by the Documentation, or any Licensee Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State; or (k) otherwise use the Licensed Software outside of the scope expressly permitted herein.
2.3. Licensee recognizes and agrees that there may be no adequate remedy at law for a breach of this Section 2, that such a breach may irreparably harm HIDDENLAYER, and that HIDDENLAYER is entitled to equitable relief (including, without limitation, injunctions, and without the posting of a bond) with respect to any such breach or potential breach in addition to any other remedies.
2.4. Licensee is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the Licensed Materials, (ii) that such Authorized Users have been trained in proper use of the Licensed Materials, and (iii) proper usage of passwords, tokens and access procedures with respect to logging into the Licensed Software. HIDDENLAYER reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case HIDDENLAYER will promptly inform Licensee in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, HIDDENLAYER may suspend Licensee’s access and use of the Licensed Software if there is an unusual and material spike or increase in Licensee’s use of the Licensed Software and HIDDENLAYER reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Licensed Software. HIDDENLAYER will provide written notice prior to such suspension if permitted by applicable law or unless HIDDENLAYER reasonably believes that providing such notice poses a risk to the security of the Licensed Software. HIDDENLAYER shall promptly reinstate Licensee’s access and use once the issue has been resolved.
INTELLECTUAL PROPERTY OWNERSHIP
3.1. As between the Parties, HIDDENLAYER is and shall be the sole and exclusive owner of all right, title and interest in and to the Licensed Materials and all improvements, derivative works, customizations and modifications thereof and thereto, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Licensee under this Agreement. In the event that items of software code provided with the Licensed Software are subject to “open source” or “free software” licenses, nothing herein limits Licensee’s rights under, or grants rights that supersede, the applicable license therefor.
3.2. Licensee owns all right, title and interest in and to all Licensee Data. Licensee hereby grants to HIDDENLAYER and its Affiliates the limited, non-exclusive, worldwide license to view and use the Licensee Data solely for the purpose of providing the Licensed Software.
3.3. HIDDENLAYER shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Licensee’s benefit. In the event HIDDENLAYER wishes to disclose the Usage Data or any part thereof to third parties (either during the Term or thereafter), such data shall be deidentified and/or presented in the aggregate so that it will not identify Licensee or its Authorized Users. The foregoing shall not limit in any way HIDDENLAYER’s confidentiality obligations pursuant to Section 9. To the extent that Licensee provides HIDDENLAYER with Feedback, such Feedback shall be free from any confidentiality restrictions that might otherwise be imposed upon HIDDENLAYER pursuant to this Agreement, and may be implemented by HIDDENLAYER in its sole discretion. Licensee acknowledges that any HIDDENLAYER products or materials incorporating any such Feedback shall be the sole and exclusive property of HIDDENLAYER.
TRIAL SERVICES AND FEEDBACK
4.1. Trial Services. If Licensee is using a free trial of the Licensed Software, a proof of concept version of the Licensed Software, a beta version of the Licensed Software, or using the Licensed Software on any other free-of-charge basis as specified in an Order (including any related support services to the extent provided by HIDDENLAYER in its sole discretion) (each, a “Trial Service”), HIDDENLAYER makes such Trial Services available to Licensee until the earlier of: (i) the end of the free trial or proof of concept period or beta testing period, as the case may be, as communicated by HIDDENLAYER to Licensee or as otherwise specified in an Order; (ii) the start date of any purchased version of such commercially-available Licensed Software; or (iii) written notice of termination from HIDDENLAYER terminating Licensee’s access and right to use the Trial Service (each, a “Trial Service Period”). HIDDENLAYER grants Licensee, during the Trial Service Period, a non-exclusive, nontransferable right to access and use the Trial Services for Licensee’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Licensee is authorized to use the Trial Services only for evaluation and not for any business or productive purposes, or any other enterprise or personal use, unless otherwise authorized by HIDDENLAYER in writing. Any data Licensee enters into any Trial Service and any configurations made to any Trial Service by or for Licensee during the term of such Trial Service will be permanently lost unless Licensee: (a) has purchased a subscription to use such Licensed Software; or (b) exports such data or configurations before the expiration or termination of such Trial Service Period. HIDDENLAYER provides no guarantee that any feature or function of any Trial Service will be available in the commercially-available version of the Licensed Software, and Licensee should review the SaaS Products features and functions before making a purchase. HIDDENLAYER will be under no obligation to provide Licensee any support services with respect to the Trial Services. Notwithstanding anything to the contrary, HIDDENLAYER provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, HIDDENLAYER disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Licensee assumes all risks and all costs associated with its use of the Trial Services. Licensee’s sole and exclusive remedy in case of any dissatisfaction or HIDDENLAYER’s breach of the Agreement with respect to any Trial Service is termination of such Trial Service. Any obligations on behalf of HIDDENLAYER to indemnify, defend, or hold harmless under this Agreement are not applicable to Licensee’s use of any Trial Service.
4.2. Licensee hereby acknowledges that the Trial Services (1) are not at the level of performance or compatibility of generally, commercially available products; (2) may not operate as intended or in a manner to achieve a specific function or purpose; (3) may be modified prior to being made generally, commercially available; (4) may not be made available for general, commercial release; (5) may not be used in a production environment; and (6) may be used only at Licensee’s sole risk. Licensee acknowledges that HIDDENLAYER makes no warranties as to the Trial Services and agrees to notify HIDDENLAYER of any bugs or problems in the Trial Services.
4.3. Licensee may from time to time provide suggestions, comments and feedback to HIDDENLAYER concerning the functionality and performance of the Licensed Software and Trial Services including, without limitation, identifying potential errors and improvements (collectively the “Feedback”). Feedback which is provided by Licensee to HIDDENLAYER in connection with this Agreement may be freely used by HIDDENLAYER to improve or enhance its products and, accordingly, Licensee grants HIDDENLAYER a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit unmodified binary distribution and otherwise exploit such Feedback without restriction.
FEES
5.1. Payment Terms. Licensee shall pay all invoices within thirty (30) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Licensee in good faith), and payment will be sent to the location specified by HIDDENLAYER. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1.5%) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Licensee’s rights set out elsewhere in this Agreement, all Licensed Materials fees are non-refundable and payable in advance. HIDDENLAYER may invoice for purchases of the Licensed Materials upon delivery.
5.2. Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the Licensed Materials. Unless otherwise agreed between the Parties, Licensee will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. HIDDENLAYER shall include the Indirect Taxes on its invoice to Licensee and remit such Indirect Taxes collected to the relevant authority if required by applicable law. HIDDENLAYER will be responsible for direct taxes imposed on HIDDENLAYER’s net income or gross receipts in its tax jurisdiction. Notwithstanding the forgoing, all payments made under this Agreement shall be in cleared funds, without any deduction or set-off, and free and clear of and without deduction from any Indirect Taxes or other withholdings of any nature.
5.3. Indirect Orders. If Licensee places an Indirect Order, then HIDDENLAYER grants the rights described in this Agreement in consideration for and subject to: (a) Licensee’s agreement to comply with the pricing and payment terms of the Indirect Order, to be separately agreed between Licensee and the applicable resale partner; and (b) Licensee’s agreement to comply with its obligations set forth in this Agreement (including the restrictions on use of the Licensed Materials). Notwithstanding the foregoing, the final sales price or rate shall be freely and independently determined between the applicable resale partner and Licensee. For the avoidance of doubt, in the case of such an Indirect Order, any indication in this Agreement of an agreement between Licensee and HIDDENLAYER for the price payable by Licensee for such Indirect Order shall be null and void and not form a binding part of this Agreement and the provisions of this Agreement related to payment terms, pricing and/or order procedures shall not apply.
SECURITY AND PROCESSING OF PERSONAL DATA
6.1. As between HIDDENLAYER and Licensee, Licensee is solely responsible for: (i) the content, quality and accuracy of Licensee Data as made available by Licensee and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Licensee Data will be collected and used for the purpose of the Licensed Software; (iii) ensuring Licensee has a valid legal basis for processing Licensee Data and for sharing Licensee Data with HIDDENLAYER (to the extent applicable); and (iv) ensuring that the Licensee Data as made available by Licensee complies with applicable laws and regulations, including applicable Data Protection Laws
6.2. The Parties shall comply with their respective obligations under the applicable Data Protection Laws.
6.3. HIDDENLAYER shall: (i) ensure that it has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Licensee Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Licensee Data; and (iii) access and use the Licensee Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement.
TERM AND TERMINATION
7.1. The initial term of this Agreement will commence on the Effective Date and will continue in effect for the period designated on Licensee’s applicable Order (the “Initial Term“). Thereafter, this Agreement will automatically renew for the same term duration unless and until either Party provides written notice of alternative terms or non-renewal at least sixty (60) days prior to the end of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term“).
7.2. Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, or an Order, in whole or in part, or, in the case of HIDDENLAYER, cease provision of the Licensed Materials, if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. HIDDENLAYER reserves the right to suspend Licensee’s access to the applicable Licensed Materials upon thirty (30) days’ written notice to Licensee if: (a) an invoice is more than sixty (60) days past due; or (b) if there is an uncured material breach of this Agreement. HIDDENLAYER will promptly reinstate Licensee’s access and use of the Licensed Materials once the issue has been resolved.
7.3. Effects of Termination/Expiration. Upon termination or expiration of an applicable Subscription Term, HIDDENLAYER may immediately deactivate Licensee’s account, and: (i) all outstanding fees and other charges under the Agreement or Order (as applicable) will become immediately due and payable; (ii) Licensee will have no further right to access or use the Licensed Products; and (iii) each Party shall return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products promptly upon receiving written request from the other Party. Any Licensee Data contained on the Licensed Software will be deleted within sixty (60) days of the termination or expiration of this Agreement. Licensee acknowledges that it is responsible for exporting any Licensee Data to which Licensee desires continued access after the termination or expiration of this Agreement, and HIDDENLAYER shall have no liability for any failure of Licensee to retrieve such Licensee Data and no obligation to store or retain any such Licensee Data beyond sixty (60) days following termination or expiration of this Agreement. All rights and licenses granted herein will simultaneously and automatically terminate at the end of the Term or upon any earlier termination and Licensee will immediately cease using the Licensed Software. The provisions of Sections 1, 2.2, 2.3, 2.4, 3, 4.3, 7.2, 7.3, 8, 9, 10, 11, 12, and 13 will survive expiration or termination of this Agreement.
CONFIDENTIALITY OBLIGATIONS
8.1. As between the Parties, Confidential Information will remain the sole property of the Disclosing Party.
8.2. Confidential Information may be used by the Receiving Party only for purposes of, or as otherwise authorized by, this Agreement. The Receiving Party will hold the Confidential Information of the Disclosing Party in strict confidence and protect such Confidential Information from disclosure using the same care it uses to protect its own Confidential Information of like importance, but not less than reasonable care. No Confidential Information will be disclosed by the Receiving Party without the prior written consent of the Disclosing Party, except that each party may disclose the terms of this Agreement and the other party’s Confidential Information to its directors, employees, attorneys, agents, auditors, insurers and subcontractors who are obligated to keep such information confidential in a manner no less restrictive than set forth in this Section 8 and only on a “need to know” basis in connection with their employment or engagement. The Party employing or engaging such persons is responsible and liable for their compliance with such confidentiality obligations. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by law or a governmental authority, including pursuant to a subpoena or court order, such Confidential Information may be disclosed, provided that the Receiving Party (a) promptly notifies the Disclosing Party of the disclosure requirement, (b) cooperates with the Disclosing Party’s reasonable efforts to resist or narrow the disclosure and to obtain an order or other reliable assurance that confidential treatment will be accorded the Disclosing Party’s Confidential Information, and (c) furnishes only Confidential Information that the Party is legally compelled to disclose according to advice of its legal counsel.
8.3. Licensee agrees that it shall not make any public announcements relating to the relationship between the Parties or the existence of this Agreement without HIDDENLAYER’s prior written approval, in HIDDENLAYER’s sole discretion.
8.4. Licensee’s unauthorized disclosure or use of HIDDENLAYER Confidential Information will automatically be deemed to be a material breach of this Agreement. Furthermore, both Parties acknowledge that any breach of this Section 8 would cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a party will be entitled to injunctions and other equitable remedies in the event of such a breach by the other. The right of each party to seek injunctive relief will not limit in any manner their respective rights to seek other and/or additional remedies at law or in equity.
INDEMNIFICATION
9.1. Licensee shall defend and indemnify HIDDENLAYER and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Licensee Data of any third party’s Intellectual Property Rights; (ii) HIDDENLAYER’s use of the Licensee Data violating applicable law, provided that such use is in accordance with the terms of this Agreement; or (iii) Licensee’s and its Authorized User’s use of the Licensed Materials, solely to the extent such use is not expressly permitted by this Agreement.
9.2. HIDDENLAYER will defend, indemnify and hold Licensee harmless from direct liability solely to the extent resulting from infringement by the Licensed Software of any third party’s valid Intellectual Property Rights, provided that (a) Licensee promptly notifies HIDDENLAYER in writing of any threats, claims and/or proceedings related thereto; (b) Licensee gives HIDDENLAYER all reasonable assistance including, without limitation, providing information, documents and access to Licensee’s employees; and (c) HIDDENLAYER will have sole control of the defense and/or settlement thereof. Licensee will be entitled to participate in any such action or proceeding at its own expense, with counsel of its own choosing.
9.3. Section 9.3 does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials; (b) combination, operation, or use of the Licensed Software in or with, any technology or service not provided by HIDDENLAYER or specified for Licensee’s use in the Documentation; (c) modification of the Licensed Software other than by HIDDENLAYER in connection with this Agreement; (d) use of any version of the Licensed Software other than the most current version, or failure to timely implement any patches, updates, upgrades, modifications or new releases of the Licensed Software made available to Licensee by HIDDENLAYER; (e) use of the Licensed Software after HIDDENLAYER’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (f) negligence, abuse, misapplication, or misuse of the Licensed Materials by or on behalf of Licensee, Licensee’s Representatives, or a third party; or (g) use of the Licensed Materials by or on behalf of Licensee that is outside the Permitted Use.
9.4. In addition to indemnification obligations described above, if HIDDENLAYER determines that the Licensed Software or any portion thereof is or may be subject to an infringement claim, HIDDENLAYER may, at its option, (a) procure for Licensee the right to continue using the Licensed Software or portion thereof (as applicable) in accordance with this Agreement; or (b) replace or modify such Licensed Software or portion thereof (as applicable) so it becomes non-infringing, but substantially equivalent in functionality and performance. If HIDDENLAYER determines that neither of the remedies in this Section 9.4 are commercially practicable, Licensee will return the Licensed Software to HIDDENLAYER, HIDDENLAYER will refund to Licensee the unamortized portion of Fees actually paid to HIDDENLAYER by Licensee for such Licensed Software or portion thereof (as applicable), as amortized on a straight-line basis over three (3) years from the Effective Date, and this Agreement (and Licensee’s license rights) will automatically terminate upon Licensee’s receipt of such refund.
9.5. THIS SECTION 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND HIDDENLAYER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE LICENSED MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
WARRANTY; DISCLAIMER
10.1. HIDDENLAYER warrants to Licensee that during the Term (the “Warranty Period“), the Licensed Software, in the form provided by HIDDENLAYER, will substantially conform in all material respects to the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.
10.2. For any breach of the warranties set forth in Section 10.1, Licensee’s sole and exclusive remedy shall be the repair or replacement of the non-conforming Licensed Software. The limited warranties set forth in Section 10.1 apply only if Licensee: (a) notifies HIDDENLAYER in writing of the warranty breach before the expiration of the Warranty Period; (b) has promptly installed all patches, updates, upgrades, modifications or new releases to the Licensed Software that HIDDENLAYER previously made available to Licensee; and (c) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).
10.3. HIDDENLAYER provides the Trial Services for evaluation only on an “AS IS” basis (without warranty or liability of any kind), for use at License’s own risk.
10.4. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND NEITHER HIDDENLAYER NOR ITS THIRD PARTY LICENSORS WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE, VIRUS-FREE, WILL PERFORM IN AN UNINTERRUPTED, SECURE OR TIMELY MANNER, OR WILL INTEROPERATE WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA. TO THE MAXIMUM EXTENT ALLOWED BY LAW, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF HIDDENLAYER HAD BEEN INFORMED OF SUCH PURPOSE), OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE HEREBY DISCLAIMED. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. No HIDDENLAYER Representative has authority to bind HIDDENLAYER to any oral representations or warranty concerning the Licensed Materials. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
LIMITATION OF LIABILITY
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HIDDENLAYER, ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INCLUDING, WITHOUT LIMITATION, ANY USE OF OR INABILITY TO USE THE LICENSED MATERIALS, IN WHOLE OR IN PART, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11.2. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF HIDDENLAYER, ITS LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID TO HIDDENLAYER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. ALL CLAIMS THAT LICENSEE MAY HAVE AGAINST HIDDENLAYER UNDER THIS AGREEMENT WILL BE AGGREGATED TO SATISFY THE LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3. The exclusions and limitations in Section 11.1 and Section 11.2 do not apply to HIDDENLAYER’s obligations under Section 9 (Indemnification) or liability for HIDDENLAYER’s gross negligence or willful misconduct.
EXPORT RESTRICTIONS
12.1 The Licensed Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees not to export, re-export, or transfer, directly or indirectly, any technical data acquired from HIDDENLAYER, or any products incorporating such data, in violation of applicable export laws or regulations.
MISCELLANEOUS
13.1. This Agreement will be governed and construed by and under the laws of the State of Texas without regard to its conflict of laws rules. The Parties expressly consent to the personal jurisdiction and venue in the state and federal courts in Travis County, Texas for any lawsuit filed there arising from or related to this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2. The Licensed Materials are “commercial off the shelf items” as defined in FAR 2.101 and their use is subject to the policies set forth in FAR 12.211, FAR 12.212 and FAR 227.7202, as applicable.
13.3. In the event of the occurrence of a Force Majeure Event, the obligations of the Parties and the time period for the performance of such obligations shall be suspended to the extent such Parties are prevented, hindered or delayed in such performance during the period of such Force Majeure Event. Upon the occurrence of a Force Majeure Event, the affected Party shall give prompt, written notice of such Force Majeure Event to the other Party describing such Force Majeure Event and its cause (to the extent known to such Party) and a description of the condition delaying the performance of such Party’s obligations.
13.4. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for HIDDENLAYER should be sent to the following addresses: (i) for physical Notices, 14900 Avery Ranch Blvd Box 201 Suite C200 Austin, TX 78717; and (ii) for electronic Notices, [email protected].
13.5. If any provision of this Agreement is be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
13.6. Licensee may not sublicense, assign, or transfer its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, including by merger, corporate reorganization or operation of law, without the prior written consent of HIDDENLAYER. Any purported sublicense, assignment, or transfer in violation of this Section 13.6 is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
13.7. The Uniform Computer Information Transactions Act does not apply to this Agreement.
13.8. THIS AGREEMENT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN LICENSEE AND HIDDENLAYER AND REPRESENTS THE ENTIRE UNDERSTANDING BETWEEN LICENSEE AND HIDDENLAYER WITH REGARD TO THE LICENSED MATERIALS. No conflicting provision of any other agreement between Licensee and HIDDENLAYER or in any purchase order, acknowledgement or other business form that Licensee may use in connection with the acquisition or licensing of the Licensed Materials will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement.
13.9. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement.
13.10. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
13.11. Any notices, requests and other communications under this Agreement will be in writing and will be delivered in person or sent by nationally recognized overnight courier service or by e-mail (with confirmation of receipt) and will be effective on the date it is officially recorded as delivered, as evidenced by delivery receipt or equivalent.