NINJIO License Agreement and associated Terms and Conditions
Pursuant to this License Agreement and associated Terms and Conditions (Terms and Conditions are defined and incorporated below), under this (“License Agreement”), Company shall provide certain digital security-related services including, among other things, e-learning digital security services (hosted and content only), and compromised credential monitoring and notification services, and access to simulated phishing services (collectively, the “NINJIO Services”), and Customer desires, pursuant to this License Agreement and associated Terms and Conditions for the duration of the (“Term”) as contained in the Order Form and/or Quote, to purchase certain NINJIO Services as provided in the Online Order Form and/or the Quote (which is created from the Online Form), both of which “Order Form” and “Quote” shall be used synonymously.
Per the quote, only some of the Exhibits below will be applicable to this agreement.
If Customer has purchased NINJIO AWARE Hosted, then this EXIBIT A applies.
Company has developed a proprietary and confidential digital security e-learning system made up of animated educational videos intended to be viewed solely by Customer’s employees, authorized Customer’s contractors, and a limited amount of employees’ families, in an effort to provide such individuals with access to a cloud based system containing ongoing, engaging, and informative computer based security awareness program (“NINJIO AWARE Hosted Services or NINJIO AWARE Private Portal Hosted Services, collectively the “NINJIO AWARE Hosted System”).
1. GRANT AND LIMITED SCOPE OF LICENSE
1.1 In consideration of payment by Customer of the agreed upon fees contained in the Quote and Customer agreeing to abide by the associated Terms and Conditions of this License Agreement, Company hereby grants a revocable, worldwide, non-exclusive, and non-transferable right and limited license during the Term to use the NINJIO AWARE Hosted System in strict accordance with the associated Terms and Conditions hereof and for no other purpose whatsoever. Company reserves all other rights. Company will make the NINJIO AWARE Hosted System available to Authorized Users at their individual workstations on supported web browsers or supported mobile devices over the Internet. Customer may view a list of supported browsers by visiting:
1.2 Beginning on or around the Start Date (as specified in the in the Quote), Customer shall provide NINJIO, and securely transfer, a specific list of Authorized Users and their corresponding email addresses, with Authorized Users department and location being optional. The subscription fees described in the Quote are based on the Customers closest estimate on the initial list of Authorized Users. After NINJIO has uploaded the Authorized Users, the first or the following month’s bill will reflect the actual number of Authorized Users in the system, depending upon when COMPANY receives the file of Customer’s users. If COMPANY has not received the list of Authorized Users by the Start Date (as contained in the Quote), then the first month’s bill will be based on the Customer’s initial estimate of users as specified in the Quote.
1.3 Customer shall not be required to install any NINJIO software on Customer’s own servers or on Customer employee workstations or purchase any additional computer hardware in order to access the NINJIO AWARE Hosted System. As part of the registration process and before receiving access to the NINJIO AWARE Hosted System, each Authorized User will be required to create a user name and password for their own individual account or will connect to the NINJIO AWARE Hosted System using their single sign on credentials. and agree to abide by the User’s Terms and Conditions available at ninjio.com.
1.4 Beginning on the Start Date, NINJIO will make available to Authorized Users a two different digital security animated educational videos (NINJIO Anime and NINJIO Corporate) approximately each month during the Term. The videos may be viewed solely by Authorized Users. NINJIO’s typical release dates are on the first Tuesday of the month (in the case of NINJIO AWARE Hosted) or the first Wednesday of the month (in the case of NINJIO AWARE Private Portal Hosted).
1.6 Customer may have opted for a “Client Private Portal” during the quoting process and as part of the NINJIO System. If so, this enables Customer to have their own database “instance” of the Learning Management System software to deploy Company’s episodes through. This, in addition, gives them the capability to brand the login and other pages with their own corporate assets, logos, and corporate color scheme, as well as create a custom domain name that points to their Client Private Portal. In addition, if Customer is running a single sign on technology, this can be utilized as well. The single sign on technologies currently supported are OKTA, SAML, and ADFS. Notwithstanding the foregoing, in certain instances, if client is using a single sign on technology that has the above-mentioned technology as the underlying technology, there may be additional time to get the single sign on technology to work properly with the NINJIO Hosted Private Portal. In some instances, it may be the case that such single sign on technology will not work with the NINJIO HOSTED Private Portal. In such a case, NINJIO and Customer will work together to figure out an alternative solution.
If Customer elects for a NINJIO HOSTED Private Portal, Customer will have selected during the ordering process whether Customer wishes NINJIO to manage the NINJIO HOSTED Private Portal for Customer, or if Customer will manage the NINJIO HOSTED Private Portal on their own. If Company manages the NINJIO HOSTED Private Portal, then Company will follow Company’s standard release dates and Company’s standardized “Deployment Methodology.” Said Deployment Methodology is documented and is available to Customer upon request.
END OF EXHIBIT A
If Customer has purchased NINJIO AWARE Enterprise, then this EXHIBIT B applies.
Company has developed a proprietary and confidential digital security e-learning system made up of animated educational videos intended to be viewed solely by Customer’s employees in an effort to provide such individuals with access to ongoing, engaging, and informative digital security awareness content (collectively, the “NINJIO Content” which is referred to and trademarked by NINJIO as (“NINJIO AWARE ENTERPRISE”). Customer desires to purchase a license to gain access to NINJIO AWARE ENTERPRISE pursuant to the associated Terms and Conditions of this License Agreement hereof.
1. GRANT AND LIMITED SCOPE OF LICENSE
1.1 In consideration of payment by Customer of the agreed upon license fees in the Quote and Customer agreeing to abide by the associated Terms and Conditions of this License Agreement, Company hereby grants a revocable, worldwide, non-exclusive, and non-transferable right and limited license during the Term to use the NINJIO Content in strict accordance with the associated Terms and Conditions hereof and for no other purpose whatsoever. Company reserves all other rights.
1.2 Customer may upload the NINJIO Content onto its internal Learning Management System for the sole purpose of allowing a certain number of Customer’s employees to view a copy of the NINJIO Content on-screen at their workstations, laptops, and mobile devices in order to display the NINJIO Content for their own personal consumption and information.
1.3 Except as expressly provided for hereunder, Customer (a) shall not copy the NINJIO Content; (b) shall not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the NINJIO Content; (c) shall not make any alterations to, or modifications of, the whole or any part of the NINJIO Content, nor permit the NINJIO Content or any part thereof to be combined with, or become incorporated in, any other content or programs without Company’s prior written consent; (d) shall not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the NINJIO Content.
1.4 Customer covenants and agrees that it shall supervise and control use of and access to the NINJIO Content and ensure that the NINJIO Content is accessed only by the Authorized Users (as defined herein) in accordance with the terms of this Agreement. Customer shall include Company’s copyright notice on all entire and partial copies of the NINJIO Content. Customer shall not provide or otherwise make available the NINJIO Content in whole or in part, in any form to any person other than Authorized Users without prior written consent from Company.
2. AUTHORIZED USERS ACCESS TO NINJIO CONTENT
2.1 Company has developed and is the owner of the NINJIO Content. Customer hereby agrees to and is purchasing a limited license to make use of the NINJIO Content in accordance with Section 1 of this License Agreement and the associated Terms and Conditions hereof.
2.2 A designated number of Authorized Users shall be allowed to view the NINJIO Content during the Term. Company will make the NINJIO Content available to such Authorized Users by delivering to Customer via electronic means SCORM compliant files that make up the NINJIO Content. Customer will be responsible for loading the NINJIO Content into Customer’s own SCORM compliant Learning Management System. Customer may request the content in other video file types, such as HTML5 and .mp4 for use outside of their LMS System, at no additional cost to Customer.
2.4 Twice per year, Company will provide Customer with a form called “Confirmation of Authorized Users” that Customer will be required to fill out and sign indicating the then current number of Authorized Users with access to the NINJIO Content. In addition, Company may request, and Customer shall be required to provide, a report from Customer’s Learning Management System showing the then current number of Authorized Users with access to the NINJIO Content. In the even that Customer is deploying NINJIO Services to a greater number of Authorized Users than what Customer is paying for, Company will send an additional invoice to “true up” so that all Authorized Users are paid for.
2.5 Each video of NINJIO Content made available to an Authorized User by Customer through Customer’s Learning Management System may be viewed by each such Authorized User as many times as they wish during the Term. Viewing of such content is only to be consumed by such Authorized User. No NINJIO Content may be shared by Customer or Authorized Users with anyone else.
2.6 In some cases, Customer may want Company to provide custom development work to make enhancements to the NINJIO Content that will be beneficial to Customer and Authorized Users. These enhancements may include creating Co-Branded NINJIO episodes or other NINJIO Content custom development work. If Customer requests custom development work and Company deems, in its sole discretion, that such requested customization is reasonable, cost-effective, Company has the resources available to dedicate to such customization, and Company is interested in dedicating Company resources to such customization, then Company may provide a separate Statement of Work to Customer, which may contain, among other things, descriptions of the desired customizations, schedules for development and delivery, and the pricing associated with developing and implementing such customizations.
2.7 Each Authorized User will be required to agree to abide by Company’s Terms of Service (“Terms of Service”) located at ninjio.com.
2.8 NINJIO will make available to Customer a different piece of NINJIO Content approximately each month during the Term. The videos may be viewed solely by Authorized Users. Subject to the terms hereof, Company will provide technical support to Customer in accordance with Company’s standard practice. The designated contact person for such person at Customer is described in the Quote.
END OF EXHIBIT B
If Customer has purchased NINJIO CREDS, then this EXHIBIT C applies.
Compromised Credential Monitoring Services
Customer is subscribing for the compromised credential monitoring and notification services of NINJIO, LLC (collectively, the “CC Services”), provided by InfoArmor, Inc (InfoArmor). The CC Services are provided in an attempt to assist Customer in (i) identifying compromised credentials (i.e. usernames, passwords, email addresses, etc., that have been compromised) that allow bad actors to access network systems, applications and data; (ii) uncovering compromised credentials from sources such as hacker dump sites, the black market, hacktivist forums, file sharing portals, botnet exfiltration, data leaks and malware logs; and (iii) finding data leaks before they become public knowledge, providing notice to Customer of such leaks, and assisting Customer in mitigating risks associated with such leaks.
1. Description of Services:
1.1 Compromised Credentials Feed – email and plaintext password pairs delivered as available.
1.2 This service monitors compromised data disclosures exposed through third party or underground malicious activity. As data is aggregated, credentials will be harvested, indexed, and delivered.
1.3 InfoArmor has compiled an aggregated database of compromised credentials, usernames and passwords. With this database, InfoArmor generates actionable, near real-time alerts when credential exposure occurs. By monitoring critical email accounts, domains, or client accounts, action can be taken when the exposure of applicable credentials is identified.
1.4 The continuous threat of an ongoing data breach is accelerating. As a result, InfoArmor continues to monitor both OSINT and non-OSINT/closed dark web sources (hacker forums, data dump sites, malware logs, key logger dumps, file sharing portals, botnets, etc.) for exposure of credentials and other personal information which may have an adverse impact on your organization. Whether this is personal information, financial, medical, or corporate credentials, InfoArmor monitors for activity, captures the most recent breached data, and presents it in an actionable manner.
1.5 Service Hours: Near 24 hours per day, 7 days per week, and every day of the year.
1.6 Communication Mechanism: Data delivered from InfoArmor to Customer via API, SFTP flat file transfer, portal download, or other mutually agreed upon communication methodology.
END OF EXHIBIT C
If Customer has purchased NINJIO PHISH then this EXHIBIT D applies.
Simulated Phishing Services – API Connection to 3rd party Simulated Phishing providers
Additional Terms and Conditions
Customer is subscribing for the Simulated Phishing services of NINJIO, LLC (collectively, the “Simulated Phishing Services”), provided by “Phishing Partner”
Simulated Phishing Services include the following:
1. “Target” Definition: A Target would be an employee’s email address, that is tested via the Service.
2. SERVICES DESCRIPTION. The Service is a web-based software application designed for conducting social engineering testing, primarily via phishing. The Service includes API integration such that users will synchronize from the NINJIO System to the Simulated Phishing Service System. A subscription to NINJIO AWARE Hosted is required for this functionality to exist. Otherwise, Customer and Phishing Partner can look at other ways of user synchronization.
3. USE OF SERVICE. Upon Customer’s acceptance of this EXHIBIT D, and subject to compliance with the terms and conditions of this Agreement, Phishing Partner hereby grants to Customer a non-transferable, non-exclusive, royalty-free right and license to use the Service solely to: (a) test Target’s security awareness via social engineering testing (b) review the reports produced by the Service for the purpose of documenting exposure to social engineering tactics.
4. RESTRICTIONS/ACKNOWLEDGMENTS. Customer’s use of the Service is subject to the following restrictions. (a) Customer agrees to use the Service only for purposes that are lawful in the jurisdictions where Customer and Targets reside. (b) Customer agrees to use the Service only to test Targets for which Customer has the full right, power, and authority to test. (c) Customer agrees to access the Service solely via the Service’s user interface for the sole purpose of conducting tests on authorized Targets and accessing corresponding test data. (d) Customer agrees not to reverse engineer, decompile, or disassemble any software or system that provides or enables the Service or otherwise attempt to derive the processes by which the Service is delivered. (e) CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR ALL ACTIVITY CONDUCTED VIA CUSTOMER’S ACCOUNT, INCLUDING ANY UNAUTHORIZED USE OF LOGOS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY, WHETHER OR NOT SUCH MATERIAL WAS AVAILABLE ON THE SYSTEM. (f) Customer agrees to cease use of the Service upon termination, expiration, or non-payment.
5. AUTHENTICATION CREDENTIALS. CUSTOMER AND ANY AUTHORIZED USERS OF CUSTOMER ACCOUNT ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF ASSIGNED AUTHENTICATION CREDENTIALS, INCLUDING, BUT NOT LIMITED TO, USERNAMES AND PASSWORDS ASSOCIATED WITH THE CUSTOMER ACCOUNT. If Customer believes that Customer’s account, or authentication credentials are being used in an unauthorized manner, Customer agrees to contact NINJIO within one calendar day so that appropriate action can be taken to modify Customer’s account.
6. Customer agrees to pay for their annual allocated targets on a monthly basis. Company will take Customer’s annual allocated target fee and divide by 12 to calculate their monthly fee. Customer is responsible for using all allocated targets as there will be no refunds for usage under the allocation. If Customer needs a greater number of targets than what has been allocated, allocations can be purchased in 101, 251, 501, 751, 1101, 1751, 2501, 4001, 6501, 10001, and 25000 increments per the associated Retail Price Sheet, available upon request.
END OF EXHIBIT D
Terms and Conditions of Company’s License Agreement and executed Quote / Order Form
1. SUBSCRIPTION TO NINJIO SERVICES
1.1 Customer subscribed for the NINJIO Services listed in the Online Electronic Order Porter Form (“Quote”) to enable a certain limited Quantity of authorized Customer employees (“Authorized Users”) identified as “Quantity” in the Quote to receive access to certain NINJIO Services during the term. Customer agrees to pay the recurring and non-recurring fees (if applicable) as described in the Quote.
1.2 Beginning on start date as noted in the Quote, NINJIO will begin the onboarding process for Customer. After the onboarding process is complete, NINJIO will make available the NINJIO Services to the Authorized Users each month during the Term the NINJIO Services are being subscribed for by the Customer.
1.3 If Customer requests or makes changes to the number of Authorized Users listed in the Quote or otherwise (i.e. either increases or decreases the number of Authorized Users), then the Per User Subscription Fee per Authorized User may fluctuate up or down based on Company’s per user pricing for that particular band of users. Customer acknowledges, understands and agrees that pricing and corresponding Per User Subscription Fees are based on a sliding scale. In certain circumstances, Customer may have received a discount off of retail pricing, so that discount will apply to the Retail Price as set for Company’s different user brackets.
1.4 The pricing provided in the Quote will remain the same throughout the Initial Subscription Term of the Agreement.
1.5 Unless otherwise approved in writing in advance by Company, Customer will be billed, and must pay Company, a minimum of seventy-five percent (75%) of the aggregate Per User Subscription Fees based on the number of Authorized Users (identified as Quantity in the Quote) provided for in the initial Quote to which these Terms and Conditions apply, even if the actual number of Customer’s Authorized Users using the NINJIO Services ends up being less than such amount during the term. This mechanism is in place to protect Company from price band manipulation. For the avoidance of doubt, as an example, if Customer subscribes for 20,000 users, but only uploads 1,000, then that particular Customer has been provided with a discount based on 20,000 users, when in reality the Customer only has 1000 users, and is getting billed at a significant unwarranted discount. The language regarding the minimum charge of 75% is meant to protect Company from an occurrence such as this.
1.6 If Customer has neglected to provide Company with the initial list of Authorized Users by the Start Date, or has not uploaded the initial list of Authorized Users by the Start Date, Company will bill Customer, and Customer shall pay Company, for the number of Authorized Users listed in the Quote for each month until Customer has provided Company with or uploaded Customers list of actual Authorized Users, at which point the Per User Subscription Fee may be adjusted based on the actual number of Authorized Users, if different from the number listed in the Quote.
2. TECHNICAL SUPPORT SERVICES
2.1 Subject to the terms hereof, Company will provide Customer with technical support services via both telephone and electronic mail on weekdays during the hours of 8:30 am through 5:30 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 805-864-1999 or any time by emailing email@example.com. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Neither Customer nor any of the Authorized Users will, directly or indirectly: make use of the NINJIO Services except in strict accordance with these Terms and Conditions and any other Terms and Conditions that may be agreed to by Customer and a NINJIO Partner; share any of the videos or other portions of or information related to the NINJIO Services with any third parties; modify, translate, or create derivative works based on the NINJIO Services including, but not limited to, the videos that are a part of such system; use the NINJIO Services in a manner that might otherwise benefit a third party; or remove any proprietary notices or labels associated with the NINJIO Services.
3.2 Customer represents, covenants, and warrants that Customer will use the NINJIO Services only in strict compliance with all applicable laws and regulations. Customer hereby agrees to indemnify, defend, and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use or Authorized Users’ use of the NINJIO Services. Although Company has no obligation to monitor Customer’s and Authorized Users’ use of the NINJIO Services, Company may do so and may prohibit any use of the NINJIO Services it believes may be (or is alleged to be) in violation of the foregoing.
3.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the NINJIO Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the NINJIO Services including, but not limited to, video content, data aggregation, identification, analysis and delivery, and process and methodologies associated with the compromised credentials monitoring and notification services and other NINJIO Services.
4.2 Proprietary Information of Customer includes non-public data provided by Customer to Company to enable Authorized Users to access the NINJIO Services (“Customer Data”). The Receiving Party agrees: (i)to take reasonable precautions to protect such Proprietary Information, and (ii)not to use (except in accessing and using the NINJIO Services as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a)is or becomes generally available to the public, or (b)was in its possession or known by it prior to receipt from the Disclosing Party, or (c)was rightfully disclosed to it without restriction by a third party, or (d)was independently developed without use of any Proprietary Information of the Disclosing Party or (e)is required to be disclosed by law.
4.3 Customer shall own all right, title and interest in and to the Customer Data. Company shall own (or has obtained the proper right and license from a third party owner to use in the manner described in these terms and conditions) and retain all right, title and interest in and to (a) the NINJIO Services (including, but not limited to, the videos that are a part thereof) and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Company, its licensors, partners, or affiliates in connection with implementing and making the NINJIO Services available to Customer or supporting Customer in connection with its use of the NINJIO Services, and (c) all intellectual property rights related to any of the foregoing.
4.4 Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the NINJIO Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free to (i) use such information and data to improve and enhance the NINJIO Services and for other development, diagnostic and corrective purposes in connection with the NINJIO Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses in the NINJIO Services (including, but not limited to, the videos which are a part thereof) are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1 Customer will pay Company the then applicable Per User Subscription Fees and other fees described in the Quote for enabling Authorized Users to access the NINJIO Services in accordance with the terms therein and in the exhibits for the particular NINJIO Services being subscribed for by Customer (collectively, the “Fees”).
5.2 If Customer’s use of the NINJIO Services exceeds the Service Capacity set forth in the Quote or otherwise requires the payment of additional fees per the Terms and Conditions, Customer shall be billed for, and shall pay Company for, such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then‑current renewal term, upon thirty(30) days prior written notice to Customer, which notice may be delivered by email.
5.3 If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30)days after the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.4 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty(30) days after the mailing date of the invoice.
5.5 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.6 Customer shall be responsible for all taxes associated with enabling Authorized Users to access the NINJIO Services other than U.S. taxes based on Company’s net income.
6. TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, the Agreement is for the Initial Subscription Term as specified in the Quote and shall be automatically renewed for additional periods of the same duration as the Initial Subscription Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the Terms and Conditions of the Agreement.
6.3 Customer will pay in full for Authorized Users to have access to and make use of the NINJIO Services up to and including the last day on which the NINJIO Services is made available to such Authorized Users.
6.4 All sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
7.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the NINJIO Services in a manner which minimizes errors and interruptions in Authorized Users access to and use of the NINJIO Services and shall perform the Implementation Services in a professional and workmanlike manner.
7.2 The NINJIO Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.3 Company does not warrant that the NINJIO Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the NINJIO SERVICES. WITHOUT IN ANYWAY LIMITING THE FOREGOING, THE EPISODES PROVIDED THROUGH THE NINJIO SERVICES ARE NOT INTENDED TO PRESENT THE ONLY, OR NECESSARILY THE BEST, METHOD OR PROCEDURE FOR DEALING WITH AN I.T. SECURITY ISSUE, BUT RATHER PRESENT THE APPROACH OR OPINION OF THE DISCUSSANT.
7.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE NINJIO SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the videos which make up the NINJIO Services of any United States copyright laws, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the NINJIO Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications and using assets or work product provided to Company by Customer, (iii) that are modified by Customer or any Authorized User after delivery by Company (which is expressly prohibited hereunder), (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the NINJIO Services is not strictly in accordance with these Terms and Conditions. If, due to a claim of infringement, the NINJIO Services is held by a court of competent jurisdiction to be or is believed by Company to be infringing on a third party’s copyrights, Company may, at its option and expense (a) replace or modify the NINJIO Services (or portions thereof) to be non-infringing, (b) obtain for Customer a license to continue using the NINJIO Services (or portion thereof) that was infringing, or (c) if neither of the foregoing is commercially practicable, terminate the Agreement and Customer’s rights hereunder and provide Customer a pro-rata refund of any prepaid, unused fees for the NINJIO Services at issue.
9. LIMITATION OF LIABILITY
COMPANY AND ITS PARTNERS, AFFILIATES, LICENSORS, SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT OR THESE TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE NINJIO SERVICES UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of the Agreement or these Terms and Conditions are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement and these Terms and Conditions will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under the Agreement without consent. The Agreement, these Terms and Conditions, and the attachments, exhibits and schedules attached hereto and thereto are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement and the Terms and Conditions, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement or these Terms and Conditions and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.