Version Effective date: December 20, 2019
BY CLICKING THE “I AGREE” OR SIMILAR BUTTON OR BY USING ANY OF THE PRODUCTS (DEFINED BELOW), CUSTOMER ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT.
This Agreement applies to the following Hack42 offerings, as further defined below (collectively, the “Products”):
Hack42 Discovery, Analysis and Research Tool (DART);
Hack42 Software including free, open source and paid commercial tools;
Any Beta Previews;
Any related Support; and
Any related Professional Services.
This Agreement includes the following Sections and Exhibits, each of which is incorporated by reference herein:
SECTION 1: General Terms and Conditions;
SECTION 2: Hack42 Software License Terms;
SECTION 3: Hack42 Terms of Service;
EXHIBIT A: Data Protection Addendum (DPA); and
EXHIBIT B: Definitions.
If Customer has purchased any Products from an authorized Hack42 reseller, the following Sections of this Agreement are superseded by the terms Customer has agreed upon with the Hack42 reseller: Section 1.1 (Term and Termination); 1.2 (Payment); Section 2.3 (Delivery); and Section 2.4 (Verification).
SECTION 1: GENERAL TERMS AND CONDITIONS
This Section 1 sets forth the terms and conditions applicable to Customer’s acquisition or purchase and use of any of the Products. Capitalized terms used but not defined in the body of this Agreement are defined in Exhibit C.
1.1 Term and Termination.
1.1.1 Term.
This Agreement starts on the Effective Date and will continue in effect until terminated by a Party in accordance with this Section 1.1.
1.1.2 Termination for Convenience. Account Cancellation.
Either Party may terminate an Order Form or this Agreement, without cause, upon at least thirty (30) days’ prior written notice before the end of the then-current Subscription Term. If Customer elects to terminate an Order Form or Agreement, it is Customer’s responsibility to properly cancel its account with Hack42.
1.1.3 Termination for Material Breach.
Either Party may terminate this Agreement immediately upon notice if the other Party breaches a material obligation under this Agreement and fails to cure the breach within thirty (30) days from the date it receives notification. Each Party also reserves the right to terminate this Agreement immediately upon written notice, without giving the other Party a cure period, as follows: by Hack42, if Customer breaches any of the terms of this Agreement relating to Hack42’s intellectual property (including Customer’s non-compliance with the license grant or any license restrictions), or if Customer’s account has been suspended for more than ninety (90) days; or by either Party, if the other breaches its confidentiality obligations in Section 1.4.
1.1.4 Effect of Termination; Survival.
Upon termination of this Agreement, Customer may not execute additional Order Forms; however, this Agreement will remain in effect for the remainder of any active Order Forms. When an Order Form terminates or expires, as to that Order Form: (i) the Subscription Term for the Software and/or Service will immediately end; (ii) any Subscription Licenses in the Order Form will automatically terminate, and Customer will no longer have the right to use the Products; (iii) if any Fees were owed prior to termination, Customer must pay those Fees immediately; (iv) Customer must destroy all copies of the Software in Customer’s possession or control, and certify in writing to Hack42 that Customer has done so; and (v) each Party will promptly return (or, if the other party requests it, destroy) all Confidential Information belonging to the other to the extent permitted by the Service. Notwithstanding the foregoing, Customer may continue to access the Software to migrate Customer’s data and may request migration of the data for up to ninety (90) days after termination or expiration of this Agreement or an Order Form; however, Customer may not use the Software or Service on a production basis during that time. Any provisions which by their nature should reasonably survive will survive the termination or expiration of this Agreement or an Order Form.
1.2 Payment.
1.2.1 Fees.
Customer agrees to pay the Fees in full, up front without deduction or setoff of any kind, in U.S. Dollars. Customer must pay the Fees within thirty (30) days of the Hack42 invoice date. Amounts payable under this Agreement are non-refundable, except as provided in Sections 1.5.1 and 1.6.2. If Customer fails to pay any Fees on time, Hack42 reserves the right, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery, and (ii) terminate the applicable Order Form or SOW. Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Hack42’s net income) that are imposed or become due in connection with this Agreement.
1.2.2 Professional Services Credits.
If Customer uses Professional Services Credits to pay for Professional Services, then upon Customer’s receipt of an SOW, the applicable Professional Services Credits will be deducted from Customer’s Professional Services Credits balance. Customer is responsible for ensuring that its purchase order issued to Hack42 for the Professional Services reflects the pricing set forth in the SOW. If there is any difference in pricing listed in the SOW and the pricing listed in Customer’s purchase order, the pricing in the SOW will control. The Parties agree that SOWs payable via Professional Services Credits do not have to be signed by either Party to be valid and enforceable. All Professional Services Credits must be used within the time set forth in the Order Form or will automatically be cancelled and are non-refundable. Customer may not apply Professional Services Credits to travel and lodging expenses, which must be invoiced separately.
1.2.3 Purchasing Additional Subscription Licenses.
Customer may obtain additional Subscription Licenses under this Agreement by submitting a request through Hack42’s website or via its sales team. If Customer purchases the additional Subscription Licenses, Customer must pay the then-currently applicable Fees for them, prorated for the balance of the applicable Subscription Term. Upon renewal of Customer’s Subscription Licenses for another Subscription Term, Hack42 will invoice all Subscription Licenses at once on an annual basis unless otherwise specified in an Order Form.
1.2.4 Add-On Software.
Add-On Software is licensed on a per User basis. For the avoidance of doubt, the number of Subscription Licenses Customer has at any given time for Add-On Software must equal the number of Subscription Licenses Customer has for the Products under this Agreement. For example, if Customer wishes to purchase a subscription to Advanced Recovery Techniques and already holds Subscription Licenses for 100 Users for the Products, it must purchase Subscription Licenses for 100 Users for Advanced Recovery Techniques.
1.3 Professional Services.
Upon Customer’s request for Professional Services, Hack42 will provide an SOW detailing such Professional Services. Hack42 will perform the Professional Services described in each SOW. Hack42 will control the manner and means by which the Professional Services are performed and reserves the right to determine personnel assigned. Hack42 may use third parties to perform the Professional Services, provided that Hack42 remains responsible for their acts and omissions. Customer acknowledges and agrees that Hack42 retains all right, title and interest in and to anything used or developed in connection with performing the Professional Services, including software, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent Hack42 delivers anything to Customer while performing the Professional Services, Hack42 grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use those deliverables during the term of this Agreement, solely in conjunction with Customer’s use of the Software or Service.
1.4 Confidentiality.
Neither Party will use the other Party’s Confidential Information, except as permitted under this Agreement. Each Party agrees to maintain in confidence and protect the other Party’s Confidential Information using at least the same degree of care as it uses for its own information of a similar nature, but in any event at least a reasonable degree of care. Each Party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other Party’s Confidential Information, including, without limitation, disclosing such Confidential Information only to its Representatives who (i) have a need to know such information, (ii) are parties to appropriate agreements sufficient to comply with this Section 1.4, and (iii) are informed of the restrictions on use and disclosure set forth in this Section 1.4. Each Party is responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable such Party to contest such order or requirement, unless such notice is prohibited by law. The restrictions set forth in this Section 1.4 will survive the termination or expiration of this Agreement.
1.5 Defense of Claims.
The Parties will defend each other against third-party claims, as and to the extent set forth in this Section 1.5 and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending Party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The Party being defended must provide the defending Party with all requested assistance, information, and authority. The defending Party will reimburse the other Party for reasonable out-of-pocket expenses it incurs in providing assistance, and will not settle or make any admissions with respect to a third-party claim without the other Party’s prior written consent, not to be unreasonably withheld or delayed. This Section 1.5 describes the Parties’ sole remedies and entire liability for such claims.
1.5.1 Hack42.
Hack42 will defend Customer against any claim brought by an unaffiliated third party to the extent it alleges Customer’s authorized use of the Software or Service infringes a copyright, patent, or trademark or misappropriates a trade secret of an unaffiliated third party. If Hack42 is unable to resolve any such claim under commercially reasonable terms, it may, at its option, either: (i) modify, repair, or replace the Software or Service (as applicable); or (ii) terminate Customer’s subscription and refund any prepaid, unused subscription fees. Hack42 will have no obligation under this Section 1.5.1 for any such claim arising from: (a) the modification of the Software or Service, or the combination, operation, or use of the Software or Service with equipment, devices, software, systems, or data, other than as expressly authorized by this Agreement (including the Documentation); (b) Customer’s failure to stop using the Software or Service after receiving notice to do so; © Customer’s obligations under Section 1.5.2; (d) products or services (including use of the Software or Service) that are provided by Hack42 free of charge; or (e) access or use of Beta Previews. For purposes of Hack42’s obligation under this Section 1.5.1, the Software and the Service include open source components incorporated by Hack42 therein.
1.5.2 Customer.
Customer will defend Hack42 against any claim brought by an unaffiliated third party arising from: (i) Customer Content that Customer uploads to the Software or the Service; (ii) Customer’s violation of this Agreement, including Customer’s breach of confidentiality or violation of Hack42’s acceptable use terms; (iii) Customer Modifications to the Software; or (iv) any third party-branded equipment, devices, software, systems, or data that Customer combines, operates, or uses with the Software or Service.
1.6 Representations and Warranties; Disclaimer; Limitations of Liability.
1.6.1 General Warranty.
Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement and each Order Form and SOW is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement.
1.6.2 Limited Warranties.
(i) Software. Hack42 warrants that: (1) the unmodified Software, at the time it is made available to Customer for download, will not contain or transmit any malware, viruses, or worms (otherwise known as computer code or other technology specifically designed to disrupt, disable, or harm Customer’s software, hardware, computer system, or network); and (2) for ninety (90) days from the date it is made available for initial download, the unmodified Software will substantially conform to its Documentation. Hack42 does not warrant that Customer’s use of the Software will be uninterrupted, or that the operation of the Software will be error-free. The warranty in this Section 1.6.2(i) will not apply if Customer modifies or uses the Software in any way that is not expressly permitted by Section 2 and the Documentation. Hack42’s only obligation, and Customer’s only remedy, for any breach of this warranty will be, at Hack42’s option and expense, to either (a) repair the Software; (b) replace the Software; or © terminate this Agreement with respect to the defective Software, and refund the unused, prepaid Fees for the defective Software during the then-current Subscription Term.
(ii) Professional Services. Hack42 warrants to Customer that any Professional Services performed under this Agreement will be performed in a professional and workmanlike manner by appropriately qualified personnel. Hack42’s only obligation, and Customer’s only remedy, for a breach of this warranty will be, at Hack42’s option and expense, to either: (1) promptly re-perform any Professional Services that fail to meet this warranty; or (2) if the breach cannot be cured, terminate the SOW and refund the unused, prepaid Fees.
1.6.3 Disclaimer.
(i) Generally. Except as expressly provided in this Agreement, Hack42 does not make any other warranties and representation of any kind, and hereby specifically disclaims any other warranties, whether express, implied, or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, or any warranties or conditions arising out of course of dealing or usage of trade. No advice or information, whether oral or written, provided by Hack42 or anywhere else will create any warranty or condition not expressly stated in this Agreement.
(ii) Products or Service. Hack42 provides the Products and Service “AS IS” and “AS AVAILABLE” without warranty of any kind. Without limiting this, Hack42 expressly disclaims all warranties, whether express, implied or statutory, regarding the Products and Service, including, without limitation, any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement. Hack42 does not warrant that the Products and Service will meet Customer’s requirements; that the Products and Service will be uninterrupted, timely, secure, or error-free; that the information provided through the Products and Service is accurate, reliable or correct; that any defects or errors will be corrected; that the Products and Service will be available at any particular time or location; or that the Products and Service is free of viruses or other harmful components. Hack42 will not be responsible for any risk of loss resulting from Customer’s downloading and/or use of files, information, Content or other material obtained from the Products or Service.
(iii) Beta Previews. Customer may choose to use Beta Previews in its sole discretion. Beta Previews may not be supported and may be changed at any time without notice. Beta Previews may not be as reliable or available as the Service. Beta Previews are not subject to the same security measures and auditing to which the Service has been and is subject. Hack42 will have no liability arising out of or in connection with Beta Previews. Customer uses Beta Previews at its own risk.
1.6.4 Limitations of Liability.
(i) Indirect Damages. To the maximum extent permitted by applicable law, in no event will either party be liable to the other party or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products arising out of or in connection with this Agreement, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not a party has been advised of the possibility of such damages.
(ii) Limitation of Total Liability. To the maximum extent permitted by applicable law, in no event will either party’s total cumulative liability under this Agreement from all causes of action and all theories of liability exceed the Fees Customer has actually paid to Hack42 during the 12 months preceding the claim giving rise to such liability. For products and services (including use of the Products) that are provided free of charge, Hack42’s liability is limited to direct damages up to $5.00 USD. For Beta Previews, Hack42’s liability is limited to direct damages up to $1.00 USD.
(iii) Exceptions. The exclusions and limitations set forth in this Section 1.6.4 will not apply to liability arising out of (1) a Party’s breach of its confidentiality obligations in Section 1.4 (except for all liability related to Content (excluding Hack42 Content), which will remain subject to the limitations and exclusions above); (2) a Party’s defense obligations in Section 1.5; or (3) Customer’s non-compliance with the license grant or license restrictions in Sections 2.1 and 2.2.
1.7 Subscription Licenses.
Subscription Licenses are granted on a per User basis and multiple Users may not use the same Subscription License. Customer may reassign a Subscription License to a new User only after ninety (90) days from the last reassignment of that same Subscription License, unless the reassignment is due to (i) permanent hardware failure or loss, (ii) termination of the User’s employment or contract, or (iii) temporary reallocation of Subscription Licenses to cover a User’s absence. When Customer reassigns a Subscription License from one User to another, Customer must block the former User’s access to the Subscription License.
1.8 Affiliates.
Customer’s Affiliates are authorized to use the Software and Service in accordance with this Agreement, so long as Customer remains fully responsible for their access and use of the Software and Service.
1.9 Support.
Hack42 will provide Support for the Software and Service as follows:
1.9.1 Generally.
Hack42 will provide standard technical Support for paid Software and Service at no additional charge eight (8) hours per day, five (5) days per week, excluding weekends and national U.S. holidays. Hack42 will strive to respond within forty-eight (48) hours. Standard Support is only offered via email, and Support requests must be initiated from a User with which Hack42’s Support team can interact. Hack42 may provide premium Support (subject to the Hack42 Premium Support for Enterprise or dedicated technical Support for the Software or Service at the Support level, Fees, and Subscription Term specified in an Order Form or SOW.
1.9.2 Exclusions.
Hack42 will use reasonable efforts to correct any material, reproducible errors in the Software of which Customer notifies Hack42. However, Hack42 will not be responsible for providing Support where (i) someone (other than Hack42) modifies the Software; (ii) Customer changes its operating system or environment in a way that adversely affects the Software or its performance; (iii) Customer uses the Software in a manner other than as authorized under this Agreement or the Documentation; or (iv) there is negligence or misuse by Customer of the Software.
1.10 Intellectual Property Rights.
As between the Parties, Hack42 owns all right, title and interest, including all intellectual property rights, in and to the Products. Hack42 reserves all rights in and to the Products not expressly granted to Customer under this Agreement. Hack42 may use, modify, and incorporate into its Products, any User-Generated Content and any Feedback, comments, or suggestions that Customer may provide or post in forums without any obligation to Customer.
1.11 Feedback.
Customer may provide Feedback to Hack42 regarding the Products. Feedback is voluntary and is not Customer Confidential Information, even if designated as such. Hack42 may fully exercise and exploit such Feedback for the purpose of (i) improving the operation, functionality and use of Hack42’s existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about the quality of the Products, provided that no data in any such publication will be used to specifically identify Customer, its employees or Customer’s proprietary software code.
1.12 Compliance with Laws and Regulations.
Customer will comply with all applicable laws and regulations, including, but not limited to, data protection and employment laws and regulations, in its use of the Products.
1.13 General Provisions.
1.13.1 Governing Law; Venue.
This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to the principles of conflict of law, any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of Illinois, and the Parties hereby consent to personal jurisdiction and venue therein. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement. Notwithstanding anything to the contrary in the foregoing, Hack42 may bring a claim for equitable relief in any court with proper jurisdiction.
1.13.2 U.S. Government Users.
The Products were developed solely with private funds and are considered “Commercial Computer Software” and “Commercial Computer Software Documentation” as described in Federal Acquisition Regulations 12.212 and 27.405-3, and Defense Federal Acquisition Regulation Supplement 227.7202-3. The Products are licensed to the U.S. Government end user as restricted computer software and limited rights data. No technical data or computer software is developed under this Agreement. Any use, disclosure, modification, distribution, or reproduction of the Products or Documentation by the U.S. Government or its contractors is subject to the restrictions set forth in this Agreement. All other use is prohibited.
1.13.3 Export.
The Products are subject to export restrictions by the U.S. Government and import restrictions by certain foreign governments, and Customer will comply with all applicable export and import laws and regulations in Customer’s use of the Products. Customer must not, and must not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer represents and warrants that (a) Customer is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (b) none of Customer’s data is controlled under the U.S. International Traffic in Arms Regulations. Customer acknowledges and agrees that the Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. Government.
1.13.4 No Publicity without Permission.
Hack42 may identify Customer as a customer to current and prospective customers. However, Hack42 may not use Customer’s name or logo in any advertising or marketing materials without Customer’s permission.
1.13.5 Assignment.
Neither Party may assign or otherwise transfer this Agreement, in whole or in part, without the other Party’s prior written consent, such consent not to be unreasonably withheld, and any attempt to do so will be null and void, except that Hack42 may assign this Agreement in its entirety, upon notice to the other party but without the other Party’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assigning party’s business or assets.
1.13.6 Notices.
Unless otherwise stated herein, any notice, request, demand or other communication under this Agreement must be in writing (e-mail is acceptable), must reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) one (1) business day following confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt and email; or (iv) three (3) business days after deposit with an internationally recognized express courier and email, with written confirmation of receipt. Notices can be sent to the address(es) set forth in this Agreement, unless a Party notifies the other that those addresses have changed.
1.13.7 Force Majeure.
Hack42 will be excused from liability to the extent that it is unable to perform any obligation under this Agreement due to extraordinary causes beyond its reasonable control, including acts of God, natural disasters, strikes, lockouts, riots, acts of war, epidemics, or power, telecommunication or network failures.
1.13.8 Independent Contractors.
Each Party is an independent contractor with respect to the subject matter of this Agreement. Nothing contained in this Agreement will be deemed or construed in any manner to create a legal association, partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the Parties, and neither Party can bind the other contractually.
1.13.9 Waiver.
A Party’s obligations under this Agreement may only be waived in writing signed by an authorized representative of the other Party. No failure or delay by a Party to this Agreement in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right hereunder at law or equity.
1.13.10 Entire Agreement.
This Agreement, together with the Exhibits and each Order Form and SOW, constitutes the entire agreement and understanding of the Parties with respect to its subject matter, and supersedes all prior or contemporaneous understandings and agreements, whether oral or written, between the Parties with respect to such subject matter. The terms of any Customer purchase order, written terms or conditions, or other document that Customer submits to Hack42 that contains terms that are different from or in addition to the terms of this Agreement, any Order Form or SOW will be void and of no effect.
1.13.11 Amendments; Order of Precedence.
Hack42 reserves the right, at its sole discretion, to amend this Agreement at any time and will update this Agreement in the event of any such amendments. Hack42 will notify Customer of material changes to this Agreement, such as price changes, at least 30 days prior to the change taking effect by posting a notice on the Service. For non-material modifications, Customer’s continued use of the Service constitutes agreement to our revisions of this Agreement. In the event of any conflict between the terms of this Agreement and any Order Form or SOW, the terms of the Order Form or SOW will control with respect to that Order Form or SOW only.
1.13.12 Severability.
If any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the Parties will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that cannot be modified or reformed in this way will be deemed deleted and the remaining provisions of this Agreement will continue in full force and effect.
SECTION 2: HACK42 SOFTWARE LICENSE TERMS
This Section 2 details terms applicable to Customer’s use of the Software.
2.1 License Grant.
Hack42 grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to install and use the Software for Customer’s internal business purposes during the applicable Subscription Term, in accordance with the Documentation, and only for the number of Subscription Licenses stated in Customer’s Order Form. The Software includes components licensed to Hack42 by third parties, including software whose licenses require Hack42 to make the source code for those components available. The source code for such components will be provided upon request.
2.2 License Restrictions.
Except as expressly permitted by law or by applicable third-party license, Customer and its Affiliates must not and must not allow any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or redistribute the Software; (ii) host the Software for the benefit of third parties; (iii) disclose or permit any third party to access the Software, except as expressly permitted in this Section 2; (iv) hack or modify the License Key, or avoid or change any license registration process; (v) except for Customer Modifications, modify or create derivative works of the Software, or merge the Software with other software; (vi) disassemble, decompile, bypass any code obfuscation, or otherwise reverse engineer the Software or attempt to derive any of its source code, in whole or in part; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation; or (viii) otherwise use or copy the Software or Documentation in a manner not expressly permitted by this Agreement.
2.3 Delivery.
Hack42 will make the License Key available for Customer to download on a secure, password-protected website. All deliveries under this Section 2 will be electronic. For the avoidance of doubt, Customer is responsible for installation of any Software and acknowledge that Hack42 has no further delivery obligation with respect to the Software after delivery of the License Key. As Updates become available, Hack42 will make those available for download on the same website. Customer must Update the Software on a commercially reasonable basis but no less than one (1) time per year. Customer is responsible for maintaining the confidentiality of Customer’s usernames and passwords.
2.4 Verification.
At Hack42’s request, Customer will promptly provide Hack42 with a Software-generated report verifying that Customer is using the Software in accordance with this Agreement. Hack42 will invoice Customer for any additional use, effective from the date its use first exceeded the terms of the Agreement.
2.5 Updates; Releases.
2.5.1 Generally.
Hack42 will make Updates and Releases to the Software available to Customer on the same secure website where Customer downloaded the Software and the License Key.
2.5.2 Supported Releases.
Hack42 will only Support a given Release of the Software for one (1) year from the original Release date, or six (6) months from the last Update of the Release, whichever is longer. If Customer requires Support for earlier Releases of the Software, then Customer must pay for that Support in accordance with the terms of a mutually agreed upon Order Form or SOW.
2.6 Types of Licenses and Permissible Use
Hack42 provides four (4) distinct types of Licenses, all governed by this Subscription Agreement. However, each License has a different Permissible Use.
2.6.1 Personal
A Personal Use License permits only non-commercial use of Hack42 Software for a User.
2.6.2 Law Enforcement / Government
A Law Enforcement or Government Use License permits only non-commercial, offical use only by User’s who have been verified as active Law Enforcement or Government employees.
2.6.3 Commercial Investigator
A Commercial Investigator Use License permits commercial forensic analysts or forensic researchers use of the Software for forensic cases or research. Incorporating Hack42 Content into commercial products is expressly forbidden.
2.6.4 Forensic Product Company
A Forensic Product Company Use License permits a commercial company providing forensic products the right to incorporate Hack42 Content into their commerical products. Additional Product Terms may apply.
SECTION 3: HACK42 TERMS OF SERVICE
Upon creation of an Account, the Customer’s use of the Products and Service is governed by the Hack42 Terms of Service and incorporated herein.
EXHIBIT A: HACK42 DATA PROTECTION ADDENDUM
Hack42’s takes seriously our responsibilty to protect User Personal Information and Data. Our practices regarding privacy and data protection detailed in our Privacy Statement and incorporated herein.
EXHIBIT B: DEFINITIONS FOR SECTIONS 1-3
“Add-On Software” means Advanced Recovery Techniques and other additional Software add-on products that Hack42 may offer from time to time.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party where “control” means having more than fifty percent (50%) ownership or the right to direct the management of the entity.
“All Users” means, collectively, Customer’s Users and External Users who use the Service.
“Americas” means the United States, Canada, Mexico, or a country in Central or South America or the Caribbean.
“Beta Previews” mean software, services, or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.
“Confidential Information” means all non-public information disclosed by either Party to the others, whether in writing, orally or by other means, designated as confidential or that the receiving Party knows or reasonably should know, under the circumstances surrounding the disclosure and the nature of the information, is confidential to the disclosing Party. For the avoidance of doubt, no Content posted on the Service will be considered Confidential Information. Confidential Information does not include any information that (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; (iv) the receiving Party independently develops without access to or use of the other Party’s Confidential Information; or (v) is or has been transmitted to, stored or posted on the Service.
“Content” means, without limitation, text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are featured, displayed, or otherwise made available through the Service.
“Customer” means, collectively, the company or organization that has entered into this Agreement with Hack42 by clicking on the “I AGREE” or similar button or by accessing the Products, its Affiliates and Representatives.
“Customer Content” means Content that Customer creates, owns, or to which Customer holds the rights.
“Customer Modifications” means Software modifications Customer may make solely for the purpose of developing bug fixes, customizations, or additional features to any libraries licensed under open source licenses that may be included with or linked to by the Software.
“Documentation” means any manuals, documentation and other supporting materials relating to the Software or Service that Hack42 provides or makes available to Customer.
“Effective Date” is the earlier of the date on which Customer (i) agrees to the terms and conditions of this Agreement as described above, or (ii) first places an order for the Products.
“External User” means an individual, not including Customer’s Users, who visit or use the Service.
“Feedback” means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on Hack42 products or services.
“Fees” means the fees Customer is required to pay Hack42 to (i) use the Products during the applicable Subscription Term or (ii) receive Professional Services, as such fees are reflected on an Order Form or SOW.
“Hack42” means, collectively, Hack42, LLC., its Affiliates and Representatives.
“Hack42 Content” means Content that Hack42 creates, owns, or to which it holds the rights.
“License Key” means the data file used by the Software’s access control mechanism that allows Customer to install, operate, and use the Software.
“Machine Account” means an account registered by an individual human who accepts the applicable terms of service on behalf of the Machine Account, provides a valid email address, and is responsible for its actions. A Machine Account is used exclusively for performing automated tasks. Multiple Users may direct the actions of a Machine Account, but the owner of the account is ultimately responsible for the machine’s actions.
“Order Form” means written or electronic documentation (including a quote) that the Parties use to order the Products.
“Professional Services” means training, consulting, or implementation services that Hack42 provides pursuant to a mutually executed SOW. Professional Services do not include Support.
“Professional Services Credits” means the upfront payment method for purchasing Professional Services (exclusive of travel and lodging expenses) that Customer may use over a period of twelve (12) months (unless otherwise stated in an Order Form) for Professional Services. Any Professional Services Credits that remain unused at the end of twelve (12) months from the date of purchase (or as otherwise stated in an Order Form) are automatically cancelled and are non-refundable.
“Release” means a Software release that Hack42 makes generally available to its customers, along with any corresponding changes to Documentation, that contains enhancements, new features, or new functionality, generally indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x).
“Representatives” means a Party’s employees, agents, independent contractors, consultants, and legal and financial advisors.
“Scraping” means extracting data from the Service via an automated process, such as a bot or webcrawler, and does not include the collection of information through Hack42’s API.
“Service” means the Hack42 Website and the Discovery, Analysis and Research Tool (DART) service.
“Service Credit” means a dollar credit, calculated as set forth below, that Hack42 may credit back to an eligible account.
“Software” means Hack42 free, open source and paid commercial tools. Software includes the Hack42 tools, any applicable Documentation, any Updates to the Software that Hack42 provides to Customer or that it can access under this Agreement, and, if included in Customer’s subscription, Add-On Software.
“SOW” means a mutually executed statement of work detailing the Professional Services Hack42 will perform, any related Fees, and each Party’s related obligations.
“Subscription License” means the license assigned to each User to install, operate, access, and use the Service and Products on Customer’s behalf. Customer may only assign one Subscription License per User across its organizations.
“Subscription Term” means one (1) year from the applicable effective date of an order or as otherwise stated in the Order Form.
“Support” means technical support for the Software or Service that Hack42 may provide.
“Update” means a Software release that Hack42 makes generally available to its customers, along with any corresponding changes to Documentation, that contains error corrections or bug fixes, generally indicated by a change in the digit to the right of the second decimal point (e.g., x.x.x to x.x.y).
“User” means (i) with respect to the Software, a single person or Machine Account that initiates the execution of the Software or interacts with or directs the Software in the performance of its functions; and (ii) with respect to the Service, an individual or Machine Account who (a) accesses or uses the Service, (b) accesses or uses any part of Customer’s account, or © directs the use of Customer’s account in the performance of functions, in each case on Customer’s behalf. The number of Users should not exceed the number of Subscription Licenses that Customer has purchased.
“User-Generated Content” means Content created or owned by a third party or External User, subject to the full definition and rights granted to Hack42 in the Hack42 Terms of Service.