End User License Agreement

1. Definitions

• “Application” means enrolling, accessing, and/or using any products and/or services of Ostrich, including but not limited to Birdseye Assess, Birdseye Vendor Assess, Birdseye Quantify, Birdseye Pro, and any and all versions thereof, provided to Licensee pursuant to this License.

• “Authorized Users” means the Licensee and its employees, directors, and officers.

• “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party (as defined in Section 5(A)) considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.”

• “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other rights or laws relating to intellectual property, and all similar or equivalent rights or forms of protection, in any part of the world.

• “Open-Source Software” means software that is distributed to the general public under a license permitting the user to execute, copy, and redistribute the software, and to modify the software (which requires that it be made available in source code form).

• “Permitted Use” means use of the Application by Licensee or Authorized Users for the benefit of Licensee in the ordinary course of its internal business operations.

• “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

• “Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

2. License

Subject to and conditioned on Licensee’s payment of fees as set out in Section 4 and compliance with all other terms and conditions of this License, Ostrich hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable limited license to use the Application solely by and through its Authorized Users solely for the Permitted Use. This License applies to the use of the Application by Licensee and its Authorized Users and any updates, revisions, replacements, upgrades, or new releases that replace and/or supplement the original Application, unless such update, revision, replacement, upgrade, or new release is accompanied by a separate license in which case the terms of that license will govern such upgrade. Ostrich, at its discretion, may amend and/or supplement this License. This License allows only Licensee and its Authorized Users to use the Application. Licensee may not make the Application available over a network where it could be used by multiple users or users other than itself or its Authorized Users.

3. License Restrictions

Except as this License expressly permits, Licensee shall not, and shall not permit its Authorized Users or any other Person to:

• Copy, decompile, reverse engineer, disassemble, decode, combine, or attempt to derive or gain access to the source code of, decrypt, modify, translate, enhance, correct, or create derivative works of the Application, in whole or in part;

• Remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to the Application;

• Use the Application for the purposes of: (i) benchmarking or competitive analysis of the Application; (ii) developing, using, or providing a competing product or service; or (iii) any other purpose that is to Ostrich’s detriment or commercial disadvantage;

• Rent, lease, lend, sell, assign, distribute, publish, transfer, redistribute, sublicense, or otherwise make available the Application to any third party; all components of the Application may be provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications and/or products; or

• Provide any Person other than Licensee or its Authorized Users with access to or use of the Application.

4.  Fees and Payment

• Fee. Licensee shall pay Licensor the fees and other amounts set forth in the Order Form, such an initial term fee and, if applicable, a renewal term fee.

• Taxes. All fees and other amounts payable by Licensee under this License are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Ostrich’s income.

5. Confidentiality.

• Confidential Information. In connection with this License, each Party (as the “Disclosing Party”) may disclose or make available confidential information to the other Party (as the “Receiving Party”). Without limiting the foregoing: (i) the Application is the Confidential Information of Ostrich; and (ii) the financial terms and existence of this License are the Confidential Information of each of the Parties. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  • not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this License;

  • except as may be permitted under the terms and conditions of Section 5(C), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this License; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 5; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 5;

  • safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care;

  • promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and

  •  ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 5.

    Notwithstanding any other provisions of this License, the Receiving Party’s obligations under this Section 5 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

• Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this License; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference or use of any Confidential Information of the Disclosing Party.

• Compelled Disclosures. the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 5(A); and (ii) provide reasonable assistance to the Disclosing Party opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 5(C), the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

6. Intellectual Property

Licensee acknowledges and agrees that the Application is provided under license, and not sold, to Licensee for use only under the terms of this License. Licensee also acknowledges and agrees that title and intellectual property rights in and to the Application, and any content displayed by or accessed through the Application, belongs to Ostrich and/or any third party who is the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties and may be subject to terms of use of any third party providing such content. Except as expressly set forth herein, this License does not grant to Licensee any rights to use such content. Except for the limited rights and licenses expressly granted under this License, nothing in this License grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to the Application.

7. Open-Source Software

The Application may contain Open-Source Software. This License does not alter any rights or obligations Licensee may have under applicable open-source licenses. Any Open-Source Software that is delivered as part of the Application and which may not be removed or used separately from the Application is covered by the warranty, support, and indemnification provisions applicable to the Application.

8. Trial Programs, Beta Programs, and Free Programs

• Trial Program. If Ostrich permits Licensee to conduct a free trial or evaluation of the Application (“Trial Program”), Licensee’s access and use of such Trial Program shall be governed by a separate Software Trial Agreement.

• Beta Program. From time to time, Ostrich may invite Licensee to try a beta program for trial and testing (“Beta Program”), which Licensee may accept or decline in Licensee’s sole discretion. Licensee shall comply with testing and trial guidelines that Ostrich provides in connection with Licensee’s access and use of a Beta Program and will make reasonable efforts to provide feedback to Ostrich. Ostrich may remove Licensee’s access to a Beta Program at any time in its sole discretion. Ostrich may also discontinue a Beta Program or choose not to make a Beta Program generally available at any time in its sole discretion.

• Free Program. Ostrich may make certain programs, products, portions of products or programs, or certain usage tiers available to Licensee free of charge (“Free Program”). Licensee’s right to access and use the Free Program is not guaranteed for any period of time and Ostrich reserves the right, in its sole discretion, to: (i) limit or terminate Licensee’s use of the Free Program; or (ii) reduce, charge or deprecate the functionality of the Free Program.

9. Disclaimer of Warranties

ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY OSTRICH ARE PROVIDED “AS IS.” TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OSTRICH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OSTRICH MAKES NO WARRANTY OF ANY KIND THAT THE APPLICATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S REQUIREMENTS OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OSTRICH OR AN AUTHORIZED OSTRICH REPRESENTATIVE, OR VIA THE APPLICATION, SHALL CREATE A WARRANTY.

10. Limitations of Liability

IN NO EVENT WILL OSTRICH BE LIABLE UNDER OR IN CONNECTION WITH THIS LICENSE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY(A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMUNITION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, IN EACH CASE REGARDLESS OF WHETHER OSTRICH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11. Term and Termination.

• Initial Term and Renewal. The initial term of this License shall be as set out in the Order Form, unless terminated earlier pursuant to any of this License’s express provisions (the “Initial Term”). The renewal of this License shall be as set out in the Order Form (the “Renewal Term”).

• Termination by Ostrich. Ostrich may terminate this License for cause if Licensee has breached this License or if Licensee commits (or causes to be committed) negligence, fraud, willful misconduct, or unlawful conduct arising from, in connection with or related to Licensee’s use of the Application. If Ostrich terminates this License with Licensee for cause, Licensee will forfeit the remainder of its use or access to the Application. Ostrich may terminate this License at any time for any reason permitted by law with sixty (60) days’ written notice to Licensee.

• Termination by Licensee. This License may be terminated by Licensee upon sixty (60) days’ written notice to Ostrich. Such written notice shall be sent via e-mail, to the e-mail address provided in Section 12(B) of this License.

• Effect of Termination or Expiration. On the expiration or termination of this License:

  • all rights, licenses and authorizations granted to Licensee will immediately terminate.

  • all amounts payable by Licensee to Ostrich of any kind under this License are immediately payable and due no later than thirty (30) days after the effective date of expiration or termination of this License.

• Surviving Terms. The provisions of this License which by their nature are intended to survive termination of this License shall survive termination of this License.

12. Miscellaneous

• Nothing contained in this License will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other in any manner whatsoever.

• Any notice, request, consent, claim, demand, waiver, or other communication to Ostrich under this License shall have legal effect only if in writing and sent to the following e-mail address: CONTRACTS@OSTRICHCYBER-RISK.COM

• Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this License, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Ostrich’s prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under this License. Any purported assignment, delegation, or transfer in violation of this License is void. This License is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

• No amendment to or modification of, or rescission, termination, or discharge of, this License is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of, this License, and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this License, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this License will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

• If any provision of this License is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this License or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this License so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

• This License is governed by and construed in accordance with the laws of the State of Utah, excluding its conflict of law principles. Licensee agrees to submit all disputes arising under this License to arbitration in Salt Lake City, Utah before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of Licensee and Ostrich.

• This License constitutes the entire agreement between Licensee and Ostrich relating to the Application and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, regarding such subject matter.