1. Definitions. The following capitalized terms shall have the meanings set forth below. Other terms are defined elsewhere in this Agreement: 

“Administrative Data” means personally identifiable information about End User and its users that may be uploaded during registration or account administration and information provided during support requests. 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Appliance” refers to a physical or virtual (container or virtual machine) appliance deployed inside of End User’s network and running the Software. 

 “Effective Date” means the date this Agreement first become binding on PROPHETIC and End User, which shall be the earliest of (i) the latest signature date set forth below, (ii) the date both parties otherwise agree to these Terms of Service, (iii) the date End User or its Affiliate places an Order under these Terms of Service, or (iv) the date on which End User first downloads, installs, registers, accesses, evaluates or otherwise uses any Product. 

 “End User” means, as the context requires, in addition to the entity agreeing to this Agreement, any End User Affiliate that places an Order under this Agreement, or otherwise uses or accesses any Product hereunder on behalf of End User. 

 “End User Data” means data that may be accessed or collected by Products during the relationship governed by this Agreement, including but not limited to logs, session data, telemetry, user data, usage data, threat intelligence data, threat detection information, copies of potentially malicious files detected by the Product, system stability data, user experience data, user interface data, network traffic metadata, packet capture, and, if elected by the End User, infrastructure usernames and passwords. End User Data may include confidential data and personal data, such as source and destination IP addresses, active directory information, file applications, URLs, file names, application names, usernames, file content, and infrastructure login credentials.

 “Hardware” means any PROPHETIC hardware products set forth in an Order. 

 “IP” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image, inside an End User’s network which has a unique internal internet protocol address that generates traffic. 

 “Order” means any purchase order or other ordering document (including a SOW) accepted by PROPHETIC or a reseller that specifies Trial Product(s) or Product(s) to be provided under this Agreement. 

 “Product(s)” means the PROPHETIC security services offering(s) set forth in an Order that may consist of Appliance(s), Hardware, Software, Subscriptions, and/or Professional Services. 

"Prophet Cloud" designates a specialized self-hosted and hybrid cloud infrastructure, uniquely integrated with PROPHETIC Software, aimed at the storage, processing, and analysis of End User Data. This infrastructure is characterized by its predictive analytical capabilities, enabling proactive data management and decision-making. The PROPHETIC Software is pivotal, assuming the responsibility of managing and maintaining the infrastructure's availability, performance, and security, including all related components. This ensures the integrity of End User Data and the consistent delivery of PROPHETIC Software functionalities. The Prophet Cloud model embodies a comprehensive blend of physical and virtual resources, advanced computational capabilities, and stringent adherence to data security, privacy, and regulatory compliance standards.

 “Professional Services” means any services performed by PROPHETIC for End User pursuant to a statement of work (“SOW”), other Order, service brief or data sheet. 

 “Schedule” sets forth terms and conditions that apply specifically to certain types of PROPHETIC offerings, which may be different than, or in addition to these Terms of Service. Schedules are incorporated into this Agreement by reference. 

 “Software” means the executable code version of PROPHETIC’s software products set forth in the relevant Order and any updates thereto furnished by PROPHETIC to End User under this Agreement. 

 “Subscriptions” means subscription-based Software or services provided by PROPHETIC to End User for a fixed or recurring period, subject to subscription fees for each such period as set forth in the relevant Order. 

 “Trial Products” mean the Products that PROPHETIC or its authorized resellers make available to End User for evaluation purposes. 

2. Scope.

2.1 This Agreement governs End User’s purchase and use of PROPHETIC Products, however they were acquired, including without limitation via a PROPHETIC authorized distributor ,reseller, or strategic partner. 

2.2 This Agreement covers all PROPHETIC Products but provisions regarding specific products or services shall be found in the attached or referenced Schedules and apply only to the extent that End User has purchased, accessed or used such Products or services. 

2.3 Authorized PROPHETIC Resellers. For any Products acquired by End User through an authorized PROPHETIC reseller, the following provisions of these Terms of Service shall not apply: Sections 3.1 and 5.1-5.4. While PROPHETIC shall remain the “licensor” for purposes of the grant of the licenses and other rights hereunder, and End User shall remain the “licensee” for purposes of the obligations contained herein, End User shall contract directly with the authorized PROPHETIC reseller for the purchase of Products provided by such authorized PROPHETIC reseller. 

3. Access and Use Rights 

3.1 Purchase of Hardware. End User agrees to purchase the Hardware set forth in the Order on the terms set forth in these Terms of Service. Delivery shall be FCA (Incoterms 2010) PROPHETIC’s point of shipment. All delivery dates are estimates. 

3.2 Software License. This section 3.2 applies to Software only. Subject to the terms and conditions of these Terms of Service (including PROPHETIC’S receipt of applicable fees), PROPHETIC grants to End User a nonexclusive, nontransferable, limited license to use the Software in accordance with the published specifications for the Product solely for End User’s internal use pursuant to the applicable Subscription/Order terms. PROPHETIC expressly reserves all other rights in the Software. 

3.3 Subscriptions. This section 3.3 applies to Subscriptions only. PROPHETIC grants to End User a non-exclusive right to access the Subscriptions solely for End User’s internal use pursuant to the applicable Subscription/Order terms. The Subscriptions will commence on the Effective Date (or other applicable start date specified in the relevant Order) and will continue for the period set forth in the Order (the “Initial Subscription Term”). The Subscriptions will automatically renew at the end of the Initial Subscription Term and any subsequent term for a renewal term of one (1) year (each a “Renewal Subscription Term,” and together with the Initial Subscription Term, the “Subscription Term”) unless either party has provided written notice of nonrenewal of the applicable Subscription at least sixty (60) days prior to the end of the then-current term. All renewals are subject to payment of applicable subscriptions fees as set forth in Section 5 below. PROPHETIC expressly reserves all other rights to the Subscriptions. 

3.4 Evaluation. Any Trial Products may only be used for evaluation during the evaluation period, not to exceed thirty (30) days (“Evaluation Period”) or such longer period as may be approved in writing by PROPHETIC in its sole discretion and solely for considering whether to purchase such Trial Products from PROPHETIC and not for any other purpose or any productive use. Any rights to use the Trial Products beyond the scope of these Terms of Service will be subject to a separate written agreement between PROPHETIC and End User. PROPHETIC may, at its option, provide reasonable support for the Trial Products to facilitate End User’s ability to evaluate such technology, but shall have no obligation to provide any such support. During the Evaluation Period, PROPHETIC may, at its sole discretion, limit certain functionality or features of the Trial Products. End User shall discontinue all use of and return such Trial Products at the end of the Evaluation Period unless the End User has properly procured the applicable Trial Products and converted them to Products hereunder. End User agrees that PROPHETIC may recover the Trial Products and/or invoice End User for their cost in the event End User fails to comply with this Section 3.4. 

NOTWITHSTANDING SECTIONS 7.2 (LIMITED WARRANTY), 8 (LIMITATION OF LIABILITY), AND SECTION 9 (DISCLAIMER), DURING THE EVALUATION PERIOD, THE TRIAL PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PROPHETIC SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE PRODUCTS FOR THE EVALUATION PERIOD. WITHOUT LIMITING THE FOREGOING, PROPHETIC AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO END USER THAT: (I) USE OF THE PRODUCTS DURING THE EVALUTION PERIOD WILL MEET ANY REQUIREMENTS; AND (II) USE OF THE PRODUCTS DURING THE EVALUATION PERIOD WILL BE UNINTERRUPTED, NON-INFRINGING, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 8 (LIMITATION OF LIABILITY), END USER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PROPHETIC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF ITS USE OF THE PRODUCTS DURING THE EVALUATION PERIOD, AND ANY BREACH BY END USER OF THIS AGREEMENT. 

3.5 Restrictions. End User shall not (and shall not permit, encourage or assist any third party to): (i) copy, modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Software or Subscriptions to human perceivable form or attempt to discover underlying source code, algorithms or techniques, except to the extent that such activities may not be prohibited under applicable law; (ii) sell, resell, distribute, transfer, publish, disclose, rent, lend, lease or sublicense the Products to any third party; (iii) disclose any benchmarking, competitive analysis or other results obtained from any Product or use any Product or portion thereof to develop any similar item or any competitive products or services; (iv) use or remove the applicable Software or Subscriptions from any Hardware on which or for which they are provided under the applicable Order; (v) attempt to disable or circumvent any license key, encryption or other security device or mechanism used in connection with the Products; (vi) remove or otherwise interfere with any portion of the Products designed to monitor End User’s compliance with this Agreement; or (vii) otherwise use the Products in any manner not authorized by the published specifications for the applicable Products. End User acknowledges that Software and Subscriptions may include license keys and other features that disable use at the end of the applicable license or Subscription Term, or once the service level set forth in the Order is met. 

3.6 Proprietary Rights. The Software and Subscriptions are licensed and not sold. PROPHETIC shall retain ownership of all Software and Subscriptions and all intellectual property rights relating thereto, including but not limited to copyrights, patents, trade secret rights, trademarks and any other intellectual property rights therein. End User agrees that PROPHETIC may use and exploit without restriction any error reports, suggestions and other information provided by End User with respect to the Products and shall own any fixes, modifications, improvements and new versions made by PROPHETIC based on such information. The Products, documentation and other non-public information provided by PROPHETIC, and the terms of this Agreement, are confidential to PROPHETIC and shall not be disclosed by End User to any third party. Products may contain certain software or portions provided under terms and conditions different from this Agreement (such as open source or community source), which may be identified in a text file or about box or in a file or files referenced thereby, and End User agrees that such software or portions will be subject to such other terms and conditions to the extent inconsistent with this Agreement, or to the extent required by such other terms and conditions. All implied licenses are disclaimed, and all rights not expressly granted herein are reserved to PROPHETIC. 

3.7 End User Proprietary Rights. Subject to the limited rights expressly granted hereunder, End User reserves all rights, title and interest in and to all End User Data, including all related Intellectual Property Rights. As between End User and PROPHETIC, End User shall retain ownership of all End User Data. No rights are granted to PROPHETIC under this Agreement other than the limited licenses expressly set forth in this Agreement. End User hereby grants to PROPHETIC and its authorized third-party service providers a perpetual, worldwide, nonexclusive, fully paid-up, royalty-free license to access, use, copy, distribute, perform, display and process End User Data to provide, maintain, and improve the Products and services and otherwise perform its obligations under this Agreement and as otherwise directed, requested, or permitted in writing by End User. 

3.8 Feedback. To the extent that End User provides PROPHETIC with any suggestions, ideas, enhancement requests, recommendations, or other feedback or information relating to the Products (collectively, “Feedback”), End User hereby grants to PROPHETIC and its Affiliates a fully paid-up, royalty free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Feedback, including but not limited to incorporation of the Feedback into future versions of the Products. 

4. Processing as Data Processor. 

4.1 Data Processing. Subject to the types of access delineated herein, End User acknowledges, consents to, and grants PROPHETIC the right, to the extent permitted by applicable law, to process and retain data received from the use of the Product, including End User Data, for the following designated purposes: (i) providing service to the End User; (ii) analyzing, maintaining, and enhancing the functionality of PROPHETIC’s products and services through the development and refinement of PROPHETIC detection algorithms and the training of artificial intelligence (AI) models; and (iii) complying with legal, regulatory, or contractual obligations. In instances where PROPHETIC processes personal data on behalf of the End User as a data processor, as defined under EU data protection legislation, such processing will be conducted in strict adherence to the provisions set forth in Sections 4.2-4.9, and in alignment with the Data Processing Agreement (“DPA”) available at www.prophetic.ai/legal/data-privacy/dpa. Should any discrepancies arise between the stipulations of this Agreement and the DPA, the terms outlined in the DPA will take precedence.

1. Default Access. End User hereby authorizes and directs PROPHETIC to store, process, retrieve, and disclose the End User Data for the purpose of providing the Product to End User or otherwise meeting its obligations hereunder and as otherwise required by law. PROPHETIC may monitor and access: (i) system stability data, including uptime statistics for various processes; hardware, software and network failure indicators; and backtrace and call stack data; (ii) interface data; and (iii) threat detection information, including: (I) the number, type and score of each threat detection instance (based on PROPHETIC proprietary metrics); (II) the attribution of each threat detection to an End User  host or account; and (III) the score for each anonymized host or account. 
   
   

2. Optional Virtual Private Network (“VPN”) Access. As set forth in the Order or as End User otherwise elects during the installation, configuration or use of the Products, PROPHETIC may (in addition to the End User Data set forth in Section 4.1a) receive VPN access, in the form of SSH over HTTPS or wireguard protocols, to PROPHETIC Products or End User Appliance on the End User’s network to facilitate troubleshooting and to provide recommendations to optimize system configuration, including monitoring, accessing and temporarily storing packet capture data and non-anonymized detection details. Select End User Data may be stored for a longer period in the form of spooled data in the event a PROPHETIC Appliance is unable to reach the Prophet Cloud. 
   
   

3. Optional User Experience Data Access. As set forth in the Order or as End User otherwise elects during the installation, configuration or use of the Products, PROPHETIC may (in addition to the End User Data set forth in Sections 4.1a) and 4.1b) receive anonymized user experience data, including the last login time; the frequency of logins; and user interface clickstream data. 

 4.2 Data Processor. To the extent PROPHETIC processes personal data on behalf of End User as a processor as defined by EU data protection law, it shall do so only in furtherance of providing the Products to End User pursuant to this Agreement and as permitted by applicable law. 

4.3 Confidentiality of Personal Data. PROPHETIC will ensure that personnel it authorizes to process personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

4.4 Sub-Processors. End User authorizes PROPHETIC to engage sub-processors, as described in the applicable Product documentation for the relevant Product and listed at http://www.prophetic.ai/legal/sub-processors, to process personal data. In the event PROPHETIC engages any new sub-processor it will: (i) update the applicable documentation; (ii) notify End Users that have opted in to receive compliance notification of such change to give End User the opportunity to object to such subprocessing; (iii) impose appropriate contractual obligations upon the sub-processor that are no less protective than this Section 4; and (iv) remain responsible for the sub-processor’s compliance with this Agreement and for any acts or omissions of the sub-processor that cause PROPHETIC to breach any of its obligations under this Agreement. If End User objects to a new sub-processor, it must do so in writing within fifteen (15) days of such update and PROPHETIC will then endeavor to offer alternate options for the delivery of Products that do not involve the new sub-processor without prejudice to any of End User’s termination rights. 

4.5 Security. PROPHETIC has implemented practices and policies to maintain appropriate organizational, physical and technical measures to safeguard the confidentiality and security of personal data to comply with applicable laws. Security and Compliance documentation can be found at http://www.prophetic.ai/legal/security-compliance.

4.6 Security Incident Notification. “Security Incident” means any unauthorized access to any End User Data stored on PROPHETIC equipment or in PROPHETIC’S facilities, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of End User Data that compromises the privacy, security or confidentiality of such End User Data. In the event of a Security Incident affecting End User personal data, PROPHETIC will without undue delay: (i) inform End User of the Security Incident; (ii) investigate and provide End User with detailed information about the Security Incident; and (iii) take reasonable steps to mitigate the effects and minimize any damage resulting from the Security Incident as required by applicable law. 

4.7 Assistance to Data Subjects. PROPHETIC shall provide reasonable assistance to End User to comply with its obligations about data subject rights under applicable data protection law and any other legal requirements, as appropriate, considering the nature of the data processing and the information available to PROPHETIC. 

4.8 Data Retention. PROPHETIC shall process and retain personal data and End User data no longer than necessary for the purposes for which it is processed. Upon termination of this Agreement, PROPHETIC shall, upon End User’s request, delete End User Data that is no longer necessary to carry out any of the purposes under Section 4.1. 

4.9 International Transfer of Data. End User personal data may be sent to facilities hosted outside of the country where End User purchased or utilizes the Products. PROPHETIC will comply with the European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of personal data from the European Economic Area and Switzerland, including the execution of EU Standard Contractual Clauses for data transfer, where applicable. 

4.10 Administrative Data Access Consent. PROPHETIC may use End User Administrative Data for the following purposes: (a) to inform End User about products, seminars and services PROPHETIC believes may be of interest to End User; (b) to contact End User if PROPHETIC needs to obtain or provide additional information; and (c) to verify the accuracy of PROPHETIC’s records. PROPHETIC may use web analytics and cookies as set forth in the PROPHETIC Privacy Policy available online at http://www.prophetic.ai/legal/privacy-policy/, which PROPHETIC may amend from time to time in compliance with applicable laws and regulations. To the extent that PROPHETIC processes personal data on behalf of End User, it will do so in accordance with Sections 4.2-4.9. 

4.11 End User Conduct; Compliance. End User is responsible for use of the Products by its Affiliates and other users and for their compliance with this Agreement. End User is solely responsible for the accuracy, quality, legality, reliability and appropriateness of all End User Data, and for providing any notices and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the End User Data; and (ii) to allow PROPHETIC to access the End User Data. End User shall ensure that End User is entitled to make End User Data accessible to PROPHETIC so that PROPHETIC and its service providers may lawfully use, process and transfer the End User Data in accordance with this Agreement on End User’s behalf. End User will promptly notify PROPHETIC if it becomes aware of any unauthorized use of or access to End User’s account or the Products. 

4.12 Data Protection by End User. End User represents and warrants that End User’s use of the Products complies with all applicable laws, including those related to data privacy, data security, and international communications and that End User has obtained all consents necessary for PROPHETIC to engage in data processing under this Agreement. Submission or provision of End User Data to PROPHETIC shall be at End User’s own risk, and PROPHETIC assumes no responsibility or liability for receipt of such End User Data.  

5. Fees and Payments. 

5.1 Fees. End User will pay the fees for Products to PROPHETIC as set forth in the applicable Order. Subscription fees may be modified by PROPHETIC for each renewal period by written notice to End User at least thirty (30) days prior to the end of the then-current period. 

5.2 Invoicing. Hardware purchased from PROPHETIC and set forth under this Agreement will be invoiced by PROPHETIC upon shipment of such Hardware. All Subscription fees and maintenance fees invoiced by PROPHETIC shall be payable by End User prior to the start of the applicable Subscription and maintenance period. All other amounts will be invoiced as set forth in the Order, or if not specified, prior to commencement of the applicable licenses, services or renewals. 

5.3 Payments. Any payments to PROPHETIC shall be due and payable within thirty (30) days after the date of invoice by PROPHETIC. Without limiting any other remedies, past due amounts shall be subject to a monthly charge of one and one-half percent (1½%) per month of the unpaid balance or the maximum rate allowable by law, whichever is less. 

5.4 Taxes. Amounts payable to PROPHETIC under this Agreement are payable in full to PROPHETIC without reduction for taxes (including any withholding tax) or customs duties. In addition, End User shall be responsible for all taxes (including, without limitation, consumption sales, use, value-added and similar taxes) and customs duties paid or payable, however designated, levied, or based on amounts payable to PROPHETIC hereunder and any associated penalties, fines and attorneys’ fees, but exclusive of United States federal, state and local taxes based solely on PROPHETIC’s net income. 

5.5 Usage Based Billing. Fees which are paid for by usage (e.g., IP count, bandwidth, devices, users, workloads, GB of logs, etc.) may be reconciled with actual usage at PROPHETIC’s discretion. PROPHETIC reserves the right to perform true-up reconciliation and charge for any usage above the volume purchased.  

5.6 Future Functionality. End User agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PROPHETIC regarding future functionality or features. 

5.7 Suspension of Account for Failure to Pay. PROPHETIC reserves the right to suspend End User’s account, in addition to all its other rights and remedies, in the event that End User’s account becomes overdue and is not brought current within ten (10) business days following notice of past due account from PROPHETIC. Such notice may be sent by email. 

6. Term and Termination. This Agreement shall commence as of the Effective Date and shall continue with respect to each Order until the end of the applicable Order term, unless earlier terminated. Either party may terminate this Agreement (or an applicable Order) in the event of breach by the other party that is not cured within thirty (30) days after notice (or ten (10) days for breach of payment or license restrictions). PROPHETIC may terminate this Agreement immediately upon End User becoming insolvent or generally failing to pay its debts as they become due, or commencing or becoming subject to reorganization, insolvency or liquidation proceedings or ceasing to conduct business in the ordinary course. Upon termination, all licenses and Subscriptions shall terminate, and End User shall return and cease all use of the Software and Subscriptions. Sections 3, 4.10, 4.11, 5, 7, 8, 9, 10, 11, 12, 13, and 15, Schedule S (Sections 3-6) and all payment obligations accruing prior to termination, will survive. 

7. Warranty. 

7.1 Mutual Warranty. Each party represents and warrants that: (i) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (ii) it shall comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations hereunder. 

7.2 Limited Warranty. 

1. PROPHETIC warrants that: (i) the Hardware shall be free from defects in material and workmanship for ninety (90) days from the date of shipment; (ii) the Software will substantially conform to PROPHETIC’s published specifications for ninety (90) days from the date of shipment; and (iii) the Subscriptions shall perform materially to published specifications for the Product. 

   
   

2. As End User’s sole remedy and PROPHETIC's exclusive liability with respect to breach of warranty in this Section 7.2, PROPHETIC shall, at PROPHETIC’s sole option, repair or replace the defective Hardware, or correct the Software or the Subscriptions, as applicable. All warranty claims must be made on or before the expiration of the applicable warranty period and the defect must not be due to accident; unusual physical, electrical or electromagnetic stress; neglect; modification, alteration or misuse; or failure to properly install, operate and maintain in accordance with the manufacturer's specifications. 

   
   

7.3 RMA Procedures. Prior to return of any Hardware, End User will execute and report the results of any tests or diagnostics specified by PROPHETIC, confirm limited warranty status with PROPHETIC and obtain and affix an RMA number from PROPHETIC prior to shipment. Returns with RMA number are to be shipped by End User, freight prepaid, to PROPHETIC’s designated return or repair facility, so that they are received within two (2) weeks of obtaining the RMA number. Any Hardware found to be out-of-warranty, including any with a voided warranty, is subject to charges for processing and repair or replacement at PROPHETIC’s then-current rates. 

8. Limitation of Liability. IN NO EVENT SHALL PROPHETIC BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING COSTS OF PROCUREMENT OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROPHETIC’S TOTAL LIABILITY ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS WILL NOT EXCEED THE AMOUNT PAID FOR THE RESPECTIVE PRODUCTS TO WHICH THE CLAIM RELATES, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. 
   
   

9. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PROPHETIC AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. END USER ACKNOWLEDGES THAT PROPHETIC DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING SERVICE PROVIDERS. 

   
   

10. Indemnity. 

10.1 PROPHETIC’s Obligation. End User agrees that PROPHETIC has the right to defend, or at its option to settle, and PROPHETIC agrees, at its own expense, to defend or at its option settle, any third-party claim, suit or proceeding (collectively, “Action”) brought against End User alleging the Products infringe any United States patent in existence as of the Effective Date, subject to the limitations set forth herein. PROPHETIC will have sole control of any such Action or settlement negotiations, and PROPHETIC agrees to pay, subject to the limitations set forth herein, any final judgment entered against End User on such issue in any such Action defended by PROPHETIC. End User agrees that PROPHETIC will be relieved of the foregoing obligations unless End User notifies PROPHETIC promptly in writing of such Action, gives PROPHETIC authority to proceed as contemplated herein, and gives PROPHETIC proper and full information and assistance to settle and/or defend any such Action. 

10.2 End User Indemnity. End User will defend any action brought against PROPHETIC, its Affiliates, and its and their respective employees, contractors, agents, officers and directors to the extent based upon a third-party claim arising from or otherwise related to: (i) the End User Data; or (ii) any use of the Product by End User not authorized under this Agreement or in violation of law and will pay any costs, damages and reasonable attorneys’ fees attributable to such Action that are finally awarded against PROPHETIC or agreed upon by End User in settlement. 

10.3 Remedies. If it is adjudicatively determined, or if PROPHETIC believes, that the Products or any part thereof, infringe any patent, copyright or trademark, or if the sale or use of the Products, or any part thereof, is, as a result, enjoined, then PROPHETIC may, at its election, option and expense: (i) procure for End User the right under such patent, copyright or trademark to sell or use, as appropriate, the Products or such part thereof; (ii) replace the Products, or part thereof, with other noninfringing suitable Products or parts; (iii) suitably modify the Products or part thereof; or (iv) remove the Products, or part thereof, terminate distribution or sale thereof and refund the payments paid by End User for such Products less a reasonable amount for use and damage. PROPHETIC will not be liable for any costs or expenses incurred without its prior written authorization, or for any installation costs of any replaced Products. 

10.4 Exclusions. PROPHETIC shall have no obligations under this Section 10 if the Action is based upon or arises out of: (i) any modification to the Product not made by PROPHETIC; (ii) any combination or use of the Product with or in any third-party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) End User’s continued use of the allegedly infringing Product after being notified of the infringement claim or after being provided a modified version of the Product by PROPHETIC at no additional cost that is intended to address such alleged infringement; (iv) End User’s failure to use the Product in accordance with the applicable Product specifications; and/or (v) End User’s use of the Product outside the scope of the rights granted under this Agreement. 

10.5 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE END USER’S SOLE AND EXCLUSIVE REMEDIES, AND PROPHETIC’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. 

11. Confidentiality. 

11.1 Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party and with respect to the either party includes information furnished by the disclosing party (the “Discloser”) to the other party (the “Recipient”), whether in oral, written, graphic or machine readable form, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Discloser, and all other information disclosed to the Recipient by the Discloser that is not readily available to the public, and all copies of the foregoing. In addition to the foregoing, Confidential Information of PROPHETIC will also include (i) all information relating to the Products, including but not limited to information relating to the performance, reliability, and stability of the Products (including availability, uptime, and performance benchmarks), operation of the Products, knowhow, techniques, processes, ideas, algorithms, and Product design and architectures, and all documentation related to the Products. 

11.2 Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (i) has entered the public domain through no action or failure to act of the Recipient; (ii) prior to disclosure hereunder was already lawfully in Recipient’s possession without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information to the Recipient; (iv) is approved in writing by the Discloser for disclosure by the Recipient; (v) is provided by the Discloser to a third party without a confidentiality restriction; or (iv) is independently developed by the Recipient without reference to the Discloser’s Confidential Information. 

11.3 Obligations of Non-Disclosure. The Recipient will safeguard the Confidential Information of the Discloser with at least the same degree of care that it utilizes to safeguard its own Confidential Information of like kind, but in any event not less than a reasonable degree of care. The Recipient agrees (a) not to disclose the Confidential Information of the Discloser to any third parties (except for its employees, Affiliates, subcontractors, or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision) in the breach of the foregoing sentence, and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Recipient will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Discloser. 

11.4 Return of Confidential Information. Each Recipient will destroy or return to Discloser all Confidential Information of the Discloser that the Recipient possesses upon the expiration or termination of this Agreement; provided, however, that to the extent that copies of Confidential Information are contained in the Recipient’s off-site backup data storage archives and are not readily accessible for deletion, the Recipient will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein. 

11.5 Compelled Disclosure. If the Recipient is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Discloser’s Confidential Information then, to the extent permitted by law, the Recipient will promptly notify the Discloser so that it may seek a protective order or other appropriate remedy. The Recipient will provide reasonable cooperation at the Discloser’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Recipient will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and will continue to treat such Confidential Information in accordance with its obligations under this provision. 

11.6 Injunctive Relief. Each party acknowledges that the Discloser may be irreparably harmed if Recipient’s obligations hereunder are not specifically enforced, and that Discloser may not have an adequate remedy at law in the event of an actual or threatened violation hereof. The Recipient agrees that Discloser, in addition to any of its other available rights and remedies, will be entitled to seek equitable relief, including injunction (with no requirement to post a bond or other security or to prove actual damages) to prevent breaches or threatened breaches of this Section 6 by the Recipient or any of its representatives and to seek specific performance of the terms of this of this provision. 

12. Governing Law; Disputes. This Agreement is governed by Delaware law, excluding its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded and shall not apply. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, shall be subject to the exclusive jurisdiction, forum, and venue of the state and federal courts in New Castle County, Delaware, and the parties agree and submit to the personal and exclusive jurisdiction of these courts. This Agreement and all proceedings shall be in the English language only.
     

13. Export; FCPA. Products may not be exported without prior written consent of PROPHETIC. End User warrants and hereby gives written assurance to PROPHETIC that End User will comply with all U.S. and foreign export and re-export restrictions applicable to the Products, documentation and technical information provided hereunder. End User warrants that it shall comply with the Foreign Corrupt Practices Act (“FCPA”) in all dealings with, by, for or on behalf of PROPHETIC, and shall not offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind that would or could be construed as an illegal or corrupt practice. 

14. Force Majeure. PROPHETIC shall not be responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond its reasonable control. 

15. Miscellaneous. This Agreement and the rights hereunder may not be assigned or otherwise transferred, either directly or indirectly, by End User without the prior written consent of PROPHETIC. This is the entire agreement between the parties relating to the subject matter hereof and no waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term herein shall in no way be construed as a waiver of any other term or breach. This Agreement supersedes all pre-printed terms and conditions in any purchase order or other business forms submitted by End User and any terms which are inconsistent with the terms of this Agreement are explicitly rejected. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement may be executed counterparts, each of which will be considered an original, including by facsimile or other electronic form. In the event of a conflict or inconsistency among the documents governing the Products, the order of precedence shall be the applicable: (i) SOW; (ii) Order; (iii) any exhibit, schedule or addendum to this Agreement; and (iv) body of this Agreement.  

SPECIAL TERMS AND CONDITIONS 

• Schedule A – Prophet

• Schedule S – Professional Services 

• Exhibit A – Support Services