Terms of Service

Last updated: 12th OCTOBER, 2023

IMPORTANT: PLEASE READ THIS END USER SUBSCRIPTION AGREEMENT (“AGREEMENT”) BEFORE ACCESSING OR USING THE DEEPFACTOR SERVICE (THE “SERVICE”) THAT THE ENTITY YOU REPRESENT (THE “SUBSCRIBER”) A SUBSCRIPTION TO EITHER FROM DEEPFACTOR (“DEEPFACTOR”) OR FROM A DEEPFACTOR AUTHORIZED RESELLER. BY ACCESSING OR USING THE DEEPFACTOR SERVICE IN ANY WAY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUBSCRIBER TO THESE TERMS, AND SUBSCRIBER IS UNCONDITIONALLY CONSENTING TO BE BOUND BY THESE TERMS. DEEPFACTOR’S PROVISION OF THE SUBSCRIPTION SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND ANY APPLICABLE ADDENDA.  

• Definitions

1. 1. 1. “Affiliate” means an entity controlling, controlled by or under common control with Deepfactor or Subscriber, where the root word “control” means (i) owning fifty percent or more of an entity’s voting securities, partnership interests, membership interests or the like; (ii) having the right to appoint fifty percent or more of an entity’s Board of Directors or similar governing body; or (iii) having the right to fifty percent or more of the profits of an entity or fifty percent or more of the assets of an entity upon dissolution.
      2. “Confidential Information” means all proprietary, secret or confidential information relating to either party that is disclosed or otherwise supplied in confidence by the disclosing party to the receiving party or acquired by a party relating to this Agreement.  Confidential Information does not include any information that the receiving party can establish:  (i) was known to the receiving party prior to receiving the same from the disclosing party, free of any restrictions and in connection with this Agreement; (ii) is independently developed by the receiving party without reference to the other party’s Confidential Information; (iii) is acquired by the receiving party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the receiving party.
      3. “Service Order” means the order issued by Subscriber to Deepfactor or an authorized Deepfactor Reseller for Services, on a document incorporating the information provided in Deepfactor’s quote.
      4. “Subscription Duration” is defined in the applicable Service Order, and starts on the Subscription Start Date.
      5. “Subscription Service” or “Service” means Deepfactor’s services as described at https://www.deepfactor.io/developer-security/ and more specifically set forth in a Service Order.
      6. “Subscription Start Date” is defined in the applicable Service Order.

• Services

1. 1. 1. Subscription Service.  Subscriber and Deepfactor agree to comply with the terms and conditions of this Agreement and each Addendum applicable to the Service(s) being procured. The terms and conditions of each applicable Addendum is hereby incorporated into this Agreement by reference.
      2. Support. Deepfactor shall provide and/or host the Service (as applicable) in compliance with the service level agreement, available in the “Deepfactor Product SLA” section at https://deepfactor.io/product-sla/ during the Subscription Duration and any renewals thereof. 

• Ownership.  Grant of Rights

1. 1. 1. No Intellectual Property Assignment.  Deepfactor owns all right, title and interest in and to all versions of the Service and all data related to the Service, and the development, creation, and delivery thereof, including, without limitation, any patents, copyrights, service marks, trademarks, trade secrets, and other intellectual property rights therein, and nothing in this Agreement shall be deemed to constitute a transfer or assignment of any such rights. Deepfactor shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate in the Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber relating to the Service (“Feedback”).  In no event shall Feedback be deemed to be Subscriber Confidential Information.
      2. Subscription Service. Subject to the terms and conditions of this Agreement, Deepfactor grants to Subscriber, a temporary, limited, non-exclusive, non-transferable, worldwide license to access and use the Service for non-commercial and internal business purposes. The foregoing license is extended to Subscriber Affiliates subject to the limitations in the applicable Service Order, provided that Subscriber shall cause its Affiliates to comply with the terms and conditions of this Agreement and Subscriber remains liable for any breach. The Service will be deemed accepted upon delivery of the access information.
      3. Restrictions. Subscriber must strictly comply with the terms and conditions of this Agreement including, without limitation, the following: (a) Subscriber may use the Service for Subscriber’s and its Affiliates’ own internal business purposes and shall not outsource, sublicense, resell, lease, transfer or otherwise allow use of the Service for the benefit of any third party; and (b) Subscriber shall not (i) create derivative works based on the Service, or cause or permit others to; (ii) modify, reverse engineer, translate, disassemble, or decompile the Services, or cause or permit others to; (iii) access the Service in order to build a competitive product or service; or (iv) access the Service in order to infringe or misappropriate any intellectual property included in the Service. Any conduct by Subscriber that in Deepfactor’s discretion restricts or inhibits any other Deepfactor subscriber from using or enjoying the Service is expressly prohibited. Subscriber will promptly notify Deepfactor of any unauthorized access or use of the Service.
      4. Subscriber Content. Subscriber is solely responsible for (and Deepfactor has no responsibility to Subscriber or any third party for) any data or information that is uploaded, recorded, published, posted, linked to, transmitted, input, or distributed by Subscriber through Subscriber’s use of the Services (“Subscriber Content”) and the consequences of Subscriber’s actions (including any loss or damage which Deepfactor may suffer) in connection with such Subscriber Content. Subscriber is also responsible for the actions of associated users for any content that they might upload, record, publish, post, link to or otherwise transmit or distribute through the use of the Services. Deepfactor may remove Subscriber Content from the Services any time upon Subscriber’s violation of this Agreement or if the Services are canceled or suspended. If Subscriber Content is Hosted by Deepfactor (“Hosted Subscriber Content”) with an expiration date, Deepfactor may also delete such Hosted Subscriber Content as of that date. Hosted Subscriber Content that is deleted may be irretrievable. Deepfactor has no responsibility or liability for the deletion or failure to store any Hosted Subscriber Content or other communication maintained or transmitted through the Services. Deepfactor reserves the right to monitor and remove Hosted Subscriber Content from the Services in its sole discretion. Subscriber agrees to immediately remove any Subscriber Content that violates this Agreement, including pursuant to a takedown request from Deepfactor. By submitting, posting or otherwise uploading or making available any Hosted Subscriber Content on the Services, Subscriber grants Deepfactor a limited, worldwide, royalty-free and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute to such Subscriber for the sole purpose of enabling Deepfactor to provide the Services. Deepfactor does not obtain any right, title or interest in the Subscriber Content, including any intellectual property rights which subsist in the Subscriber Content.
      5. Third Party Software. Subscriber acknowledges and agrees that the Services may use and be provided with certain open source and third-party software (collectively, “Third Party Software”), as referenced in the Service itself, applicable documentation, or on Deepfactor’s website, for use in combination with the Services. This Agreement shall not apply to Third Party Software, and the terms of the license documentation regarding Third Party Software shall govern Subscriber’s access to and use of the applicable Third Party Software. Such Third Party Software is distributed to Subscriber solely under the terms set forth in the relevant Third Party Software license agreements (which are referenced on Deepfactor Third Party Disclosure website at https://deepfactor.io/open-source-disclosure/, and Subscriber acknowledges and agrees that this Agreement in no way supplements or detracts from any term or condition therein. ALL THIRD PARTY SOFTWARE IS PROVIDED WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. If and to the extent required by the applicable Third Party Software license, Deepfactor will make available the required source code for the Third Party Software in response to Subscriber’s request.
      6. Privacy Policy. Subscriber’s use of the Services is subject to Deepfactors then current privacy policy available at https://www.deepfactor.io/privacy-policy/. 

• Term and Termination 

1. 1. 1. Term of a Subscription Service. The Subscription Service shall start on its Subscription Start Date, as indicated in the applicable Service Order for the term listed on the Service Order (“Initial Term”). The term shall renew automatically for successive periods of twelve (12) months (“Renewal Term”) unless Customer provides a written notice of cancellation at least thirty (30) days prior to the end of the previous term. For any Renewal Term, Deepfactor reserves the right to increase the fees to Customer for any services listed on the Service order by up to five percent (5%) from the previous term.
      2. Termination for Breach/Insolvency. Either party may immediately terminate the Subscription Service for material breach of this Agreement by the other party if such breach is not cured within thirty (30) days after written notice thereof.  Either party may terminate the Subscription Service upon notice to the other if the other party ceases to conduct business in the ordinary course without a successor.
      3. Consequences of Termination. Immediately upon termination of the Subscription Service, (a) the licenses granted by Deepfactor shall immediately terminate; (b) upon written request, each party shall destroy or return to the other party any and all Confidential Information received from the other party; and (c) Subscriber shall cease to use the Service and, if applicable, Deepfactor shall cease hosting the Service for access by Subscriber. The parties’ rights and obligations under this Section 5, and under Sections 3.1 (No Intellectual Property Assignment), 3.3 (Restrictions), Section 6.2 (Disclaimer), Section 7 (Indemnification), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Governing law and jurisdiction), and 11 (General Provisions) shall survive.

• Limited Warranties.  

1. 1. 1. Subscription Services.  Deepfactor represents and warrants that it will perform the Service in a good and workmanlike manner in accordance with applicable industry standards. Subscriber’s sole and exclusive remedy and Deepfactor’s entire liability for any breach of this Section 6 shall be as follows: Deepfactor will have thirty (30) days after written notice to deliver a correction that resolves the noncomformance of the Service with this Section 6 or shall refund to the Subscriber any prepaid Service fees in a prorated amount based on the remaining days in the Subscription Duration, and all remaining obligations under this Agreement shall be terminated.
      2. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 6, DEEPFACTOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED. DEEPFACTOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTIES REGARDING THE DATA PROVIDED AS PART OF THE SERVICE. SUCH DATA IS FOR INFORMATIONAL PURPOSES ONLY AND MAY NOT BE ACCURATE OR RELIABLE.  EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY DEEPFACTOR, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. DEEPFACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. DEEPFACTOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.  DEEPFACTOR CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, SUBSCRIBER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY UPLOAD AND DOWNLOAD TO AND FROM THE SERVICE.   

• Indemnification

1. 1. 1. Deepfactor Indemnity. Deepfactor shall defend Subscriber, its Affiliates, officers and directors, employees and agents against any third party claims that the use of the Service as contemplated hereunder (other than any Service Provider Reports, or modifications or combinations made to the Service by Subscriber) infringes any copyrights, patents or other intellectual property right of a third party, and Deepfactor shall pay any damages finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Deepfactor.
      2. Subscriber Indemnity. Subscriber will defend Deepfactor, its Affiliates, service providers and licensors, and their respective directors, officers, employees and agents, from and against any third party claims arising out of or related to any Service Provider Reports or other Subscriber content posted, stored or otherwise transmitted on or through the Service, including any claims that such content violates the intellectual property or other rights of, or has otherwise harmed, a third party, and Subscriber shall pay any  losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Subscriber.
      3. Procedure. The indemnifying party’s (“Indemnifying Party’s”) obligations under this Section 7 are subject to the following obligations of the party seeking indemnification (“Indemnified Party”). The Indemnified Party shall give prompt written notice of the claim to the Indemnifying Party.  The Indemnifying Party shall have sole control of the defense and settlement of the claim, provided that it may not settle a claim that does not provide for a full release of the Indemnified Party, without the Indemnified Party’s advance written consent. The Indemnified Party shall give the Indemnifying Party reasonable assistance in defense of claims. This Section 7 states the Indemnifying Party’s entire liability and the Indemnified Party’s sole and exclusive remedy for claims covered by this indemnity.

• LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE  SERVICE, OR ANY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY SUBSCRIBER ON ANY INFORMATION OBTAINED FROM DEEPFACTOR, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO DEEPFACTOR’S RECORDS, PROGRAMS OR SERVICE. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. 

• Confidentiality. Each party reserves any and all right, title and interest that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement.  The receiving party will protect Confidential Information of the disclosing party against any unauthorized use or disclosure to the same extent that the receiving party protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event less than a reasonable standard of care; provided that the Confidential Information of the disclosing party is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the receiving party or the receiving party otherwise knows or has reason to know that the same is Confidential Information of the disclosing party.  The receiving party will use any Confidential Information of the disclosing party solely for the purposes for which it is provided by the disclosing party.  This paragraph will not be interpreted or construed to prohibit any use or disclosure of Confidential Information to the extent: (a) necessary or appropriate in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; or (b) required to be disclosed by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof (e.g., so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure).  

• Governing Law and Jurisdiction. This Agreement shall be governed by the laws of California without regard to its conflict of law principles. The losing party in any dispute shall pay all court costs, expenses and reasonable attorneys’ fees of the prevailing party.

• General Provisions. The parties are independent contractors and nothing in this Agreement shall be deemed to create the relationship of partners, joint venturers, employer-employee, master-servant, or franchisor-franchisee betweed Neither party is authorized to enter into any contractual commitment on behalf of the other party. This Agreement, together with the attached SLA and applicable Service Order, contains the entire agreement of the parties and supersedes any prior or present understanding or communications regarding its subject matter, and may only be amended in writing.  In the event of a conflict between the terms in the applicable Service Order and the Agreement, the terms contained in this Agreement shall control. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.  Neither party shall assign any of its rights or obligations hereunder without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign its rights and obligations hereunder to an Affiliate and/or to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non- assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.  Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than fees due hereunder) caused by reasons beyond its reasonable control, including acts of God, war, terrorism, strikes, failure of suppliers, fires, floods, earthquakes or other force majeure. The use of the Service is subject to U.S. export control laws and may be subject to similar regulations in other countries and Subscriber agrees to comply with all such laws. Any notice given under this Agreement shall be in writing and shall be effective (i) upon receipt if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; (ii) three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, when addressed to the address set forth above; or (iii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail.