Trustmark License Agreement

WhiteHat Security, Inc.

Trustmark License Agreement

THIS TRUSTMARK LICENSE AGREEMENT (“AGREEMENT”) IS ENTERED INTO BETWEEN COMPANY (AS DEFINED BELOW), AND THE ENTITY YOU REPRESENT IN EXECUTING THIS AGREEMENT (“YOU”). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS APPLICABLE TO YOU IN USING THE TRUSTMARK. BY CLICKING “ACCEPT” OR BY USING THE TRUSTMARK, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND FULLY PERFORM YOUR OBLIGATIONS HEREUNDER, AND YOU AGREE TO BECOME A PARTY TO, AND BE BOUND BY, THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR DISPLAY THE TRUSTMARK.

AS USED IN THIS AGREEMENT, “COMPANY” MEANS WHITEHAT SECURITY, INC. PLEASE NOTE THAT COMPANY RESERVES THE RIGHT TO CHANGE THE COMPANY ENTITY PARTICIPATING IN THIS AGREEMENT BY NOTICE TO YOU, AS DESCRIBED IN THIS AGREEMENT.

IF YOU ARE A CUSTOMER OF A RESELLER (AS DEFINED HEREIN), YOU REPRESENT AND WARRANT THAT YOUR RESELLER IS AUTHORIZED TO APPLY FOR, ACCEPT, INSTALL, MAINTAIN, AND, IF NECESSARY, REMOVE THE TRUSTMARK ON YOUR BEHALF. BY AUTHORIZING YOUR RESELLER AS SUCH, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DISPLAY THE TRUSTMARK.

IF YOU ARE A RESELLER AND ARE ACTING AS THE AUTHORIZED REPRESENTATIVE OF A CUSTOMER IN APPLYING FOR A TRUSTMARK, YOU REPRESENT AND WARRANT AS SET FORTH IN SECTIONS 4.1 AND 4.2. IF YOU ARE A RESELLER AND ARE APPLYING FOR YOUR OWN TRUSTMARK, THIS AGREEMENT APPLIES TO YOU IN ITS ENTIRETY, EXCEPT FOR SECTION 4.2.

 

1. Definitions.

“Application” means a request submitted to Company to enroll for Services.

“Company Services” or “Services” means the security scanning services performed by Company, and, if applicable, such other services delivered in connection with the Trustmark and upon which the display of the Trustmark is conditioned, as indicated in Company’s published materials describing the Services.

“Company Verification” means the authentication and verification methods established and enforced by Company to confirm that the website upon which the display of the Trustmark is conditioned is actively under Company Services.

“Intellectual Property Rights” means any and all now known or hereafter existing rights associated with intangible property, including, but not limited to, registered and unregistered, United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how and all other intellectual property and proprietary rights (of every kind and nature throughout the universe and however designated).

“Reseller” means an internet service provider, a systems integrator, a web host, a technical consultant, an application service provider, or other entity authorized to obtain Company Services for resale.

“Trustmark” means an electronic image featuring a Company mark intended for display on Your Website which you obtain via Company’s Sentinel portal (i.e. customer portal). The image indicates to a website visitor that you or your organization are recipients of Company Services and when a visitor clicks the image, the Trustmark Status Splash Page is displayed.

“Services Agreement” means the agreement(s) governing the Company Services.

“Trustmark Status Splash Page” means a Web page generated and hosted by Company that is displayed when a visitor clicks on the Trustmark. Such Web page indicates whether the website on which the Trustmark is displayed is actively receiving Company Service(s) at the time the visitor clicks on the Trustmark.

“Your Website” means a website (i) owned or controlled by you or a website for which your right to use has been sufficiently proven by you to Company’s satisfaction and (ii) which is actively receiving Company Service(s).

 

2.  License and License Restrictions.

2.1 Subject to approval of your Application, which includes verification that there is an active Service Agreement between You and the Company covering Your Website, Company grants you a nonexclusive, non-transferable, non-sublicenseable license during the term of this Agreement to download, install, and display the Trustmark on Your Website, in accordance with the Trustmark installation instructions. This is a single copy of the Trustmark solely for the purpose of identifying your organization as a Company customer covering Your Website in accordance with the terms of this Agreement. If at any time the enrollment information you provided upon enrollment for the Services is incorrect or has changed, or if your organization name and/or domain name registration has changed, you must immediately notify the Company and obtain an updated Trustmark for the updated domain. Upon receipt of such notice, Company may revoke your Trustmark and issue you a corrected Trustmark. Company may suspend display of your Trustmark at any time at its sole discretion if you fail any Company Verification and until such failure is remediated to Company’s

2.2 You shall not (i) use the Services for or on behalf of any organization or domain other than the organization and domain named in your Application, (ii) use the Trustmark in the absence of the Trustmark Status Splash Page, (iii) copy, sell, rent, lease, transfer, assign or sublicense the Trustmark, in whole or in part, (iv) alter or tamper with the Trustmark in any way, including but not limited to skewing; modifying the color, size, pattern and fonts; and separating logo elements, copyright and trademark indicators, or attempting to alter or suppress access to the Trustmark Status Splash Page, or (vi) take any action that will interfere with or diminish Company’s rights in the Trustmark or underlying Service. If you believe that the Trustmark has been copied or is being used in any way that constitutes Intellectual Property Rights infringement, you shall notify Company immediately. Breach of any of the restrictions above shall be considered a material breach of this

2.3 If you are using the flash version of the Trustmark, and if the number of views on your web page that displays the Trustmark exceeds 10,000 per day, then Company reserves the right to require you to host the Trustmark on Your Website in accordance with instructions Company will provide to you (“self-hosting”). Company will provide no less than thirty (30) days’ notice if self-hosting is required.

 

3.  Term and Termination.

3.1 Unless earlier terminated in accordance with the terms hereof, this Agreement shall remain in effect until the termination or expiration of the Services Agreement covering Your Website that entitles you to use the Trustmark. The provisions of sections 3.3, and 10 through 20 shall survive

3.2 Company reserves the right to remove the Trustmark from Your Website, and this Agreement shall automatically terminate, if: (i) you cease to be a customer of the Company Service; (ii) Company discovers that the information that you provided on your Application or during enrollment is no longer valid; (iii) you or your Reseller fail to perform your obligations herein or under a Services Agreement; (iv) you violate any of the restrictions set forth in section 2.3 above; or (v) you use the Trustmark for any unlawful

3.3 Upon termination or expiry of this Agreement, you shall immediately cease displaying the Trustmark and, if the Trustmark is self-hosted, you shall permanently remove it from all devices on which it is installed and shall not use it for any purpose thereafter.

 

4.  Representations and Warranties.

4.1 You represent and warrant to Company that (i) you have the corporate power and authority to request Trustmark in connection with the domain indicated in your Application and to enter into, and perform your obligations under the Agreement; (ii) all information you provide in your Application for the Company Verification is true and correct at the time of submission, and such information (including any domain name or e-mail address) does not infringe the Intellectual Property Rights of any third party; (iii) you will use the Trustmark in accordance with this Agreement only; (iv) you will not make any unauthorized representation or warranty to any third party relating to the Service. In the event that Your Website is managed, and/or hosted by a third party service provider, you warrant that you have obtained the consent and authorization from such third party service provider necessary for Company to perform the Services. You agree to facilitate any necessary communication and exchange of information between Company and your third party service provider.

4.2 Further to section 4.1, Reseller represents and warrants to Company and anyone who relies on the Trustmark that (i) it has obtained the authority of its customer to enter into this Agreement on behalf of its customer and/or to bind its customer to this Agreement; (ii) it shall comply with and procure its customer’s compliance with this Agreement; and (iii) it shall not allow any website it hosts to display a Trustmark unless such website is licensed to do so.

 

5.  Proprietary Rights.

You acknowledge that Company and its licensors retain all Intellectual Property Rights and title in and to all of their confidential information or other proprietary information, products, Services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the services provided by Company hereunder, including without limitation all modifications, enhancements, derivative works, configurations, translations, upgrades, and interfaces thereto (all of the foregoing, “Company Works”). The Company Works do not include your pre-existing hardware, software, or networks. Except as otherwise expressly provided herein, nothing in this Agreement shall create any right of ownership or license in and to the other party’s Intellectual Property Rights, and each party shall continue to independently own and maintain its Intellectual Property Rights.

 

6.  Modifications to Trustmark License Agreement.

Company may revise the terms of this Agreement at any time. Any such change will be binding and effective thirty (30) days after publication of the revised Agreement on Company’s website, or upon notification to you by e-mail. If you do not agree with the change, you may terminate this Agreement at any time by notifying Company in writing. By continuing to use and display the Trustmark after such change, you agree to abide by and be bound thereby.

 

7.  Privacy Matters.

The Trustmark indicates which Company Services you have purchased. You agree and consent that Company may (i) place in your Trustmark and Trustmark Status Splash Page, certain information that you provide during enrollment for the Company Service; and (ii) publish your Trustmark on third-party websites subject to Company’s agreements with applicable third-party service providers or technology partners. By placing the Trustmark on Your Website, you agree and consent that Company may capture, use, and disclose the IP address (which does not include any personally-identifiable information) of visitors to Your Website for the purposes of: (a) preparing reports about the use of the Trustmark that may be provided to customers, potential customers and the general public, (b) improving the utility of the Trustmark or creating new services, or (c) complying with a court order, law or requirement of any government agency.

 

8.    Disclaimers of Warranties.

COMPANY DOES NOT WARRANT THAT THE TRUSTMARK OR TRUSTMARK STATUS SPLASH PAGE WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER REQUIREMENTS, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE.

 

9.    Indemnity.

You agree to indemnify, defend and hold harmless Company, its directors, shareholders, officers, agents, employees, successors and assigns from any and all third party claims, suits, proceedings, judgments, damages, and costs (including reasonable attorneys’ fees and expenses) arising from: (i) the breach of any of your warranties, representations, and obligations under this Agreement; or (ii) any infringement of an Intellectual Property Right of any person or entity in information or content provided by you. Company shall promptly notify you of any such claim, and you shall bear full responsibility for the defense of such claim (including any settlements); provided however, that (a) you keep Company informed of, and consult with Company in connection with the progress of such litigation or settlement; (b) you shall not have any right, without Company’s written consent, which consent shall not be unreasonably withheld, to settle such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort, or otherwise) on the part of Company, or requires any specific performance or non-pecuniary remedy by Company; and (c) Company shall have the right to participate in the defense of a claim with counsel of its choice at its own expense.

 

10.  Limitations of Liability.

THIS SECTION 10 APPLIES TO LIABILTY UNDER CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE AND/OR STRICT LIABILITY); AND ANY OTHER LEGAL OR EQUITABLE FORM OF CLAIM.  IN THE EVENT OF ANY CLAIM, ACTION, SUIT, ARBITRATION, OR OTHER PROCEEDING RELATING TO THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE FOR (I) ANY LOSS OF PROFIT, BUSINESS, CONTRACTS, REVENUE OR ANTICIPATED SAVINGS, OR (II) ANY INDIRECT OR CONSEQUENTIAL LOSS.  COMPANY’S TOTAL LIABIILTY FOR DAMAGES SUSTAINED BY YOU AND ANY THIRD PARTY FOR ANY LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE, TO ONE THOUSAND UNITED STATES DOLLARS (US$ 1,000.00).  TO THE EXTENT JURISDICTIONS DO NOT ALLOW CERTAIN LIABILITY LIMITATIONS, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

 

11.  Severability.

If any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.

 

12.  Governing Law.

This Agreement and any disputes relating to the services provided hereunder shall be governed and interpreted according to each of the following laws, respectively, without regard to its conflicts of law provisions, the laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

 

13.  Dispute Resolution.

To the extent permitted by law, before you file suit or initiate an administrative claim with respect to a dispute involving any aspect of this Agreement, you shall notify Company, and any other party to the dispute for the purpose of seeking a business resolution. Both you and Company shall make good faith efforts to resolve such dispute via business discussions. If the dispute is not resolved within sixty (60) days after the initial notice, then a party may proceed as permitted under applicable law as specified under this Agreement.

 

14.  Non-Assignment.

You may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Company’s prior express written consent. Such consent shall not be unreasonably withheld or delayed.

 

15.  Notices and Communications.

You will make all notices, demands or requests to Company with respect to this Agreement in writing to the “Contact” address listed on the website from where you obtained the Trustmark, with a copy to: Attn: Legal Department, WhiteHat Security, Inc.

 

16.  Entire Agreement.

This Agreement and any applicable Services Agreement constitute the entire understanding and agreement between Company and you with respect to the transactions contemplated, and supersede any and all prior or contemporaneous oral or written representation, understanding, agreement or communication relating thereto. Terms and conditions in any purchase orders that are not included or that conflict with this Agreement are null and void.