ProjectDiscovery Platform Terms of Service
These Terms of Service (together with any applicable Order Forms, exhibits, and incorporated attachments, the "Agreement") govern access to and use of the ProjectDiscovery Platform and are entered into by and between ProjectDiscovery, Inc., a Delaware corporation ("ProjectDiscovery"), and the individual or entity ("Customer" defined below) that either: (a) executes an Order Form that expressly incorporates this Agreement by reference; or (b) accesses or uses the ProjectDiscovery Platform in any manner. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates (as defined below) to the terms and conditions of this Agreement. If the individual accepting this Agreement does not have such authority or does not agree with the terms of the Agreement, such individual must not accept this Agreement and may not use the ProjectDiscovery Platform. Capitalized terms shall have the meaning outlined in Section 1 (Definitions) and others are defined contextually in this Agreement.
Definitions
"Affiliates" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.
"AI Features" means generative artificial intelligence functionality included in or interoperating with the Subscription Services, which may use third-party large language models (e.g., OpenAI) to process inputs and generate responses or outputs.
"AI Models" means the underlying machine learning or artificial intelligence models, whether proprietary to ProjectDiscovery or provided by third parties, that generate outputs in response to prompts or inputs via the AI Features.
"AI Output" means any response, suggestions, analysis, or other output generated by the AI Features based on inputs derived from Customer Data, including Scan Results or Asset related information.
"Asset" means a unique asset is defined as any identifiable system, device, service, or component addressable by a distinct subdomain, domain, or IP address, regardless of the number of ports or services exposed. This includes both external and internal assets that can be independently discovered and scanned.
"Authorized User" means Customer's employees, consultants, contractors, agents or other business users: (i) who are authorized by Customer to access and use the Subscription Services under this Agreement; and (ii) for whom access to the Subscription Services has been purchased or otherwise provided.
"Customer" means in the case of an individual accepting this Agreement on his or her behalf, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) that have executed an Order Form.
"Customer Data" means any data and information that ProjectDiscovery obtains as a result of Customer and its Authorized Users use of the Services, including Asset data, whether or not incorporated into the Scan Results. Customer Data excludes Statistical Usage Data, and any suggestion, enhancement request, recommendation, correction, or other Feedback relating to the operation of the Services pursuant to Section 6.4.
"Documentation" means the electronic, online help files, technical documentation, and user manuals made available by ProjectDiscovery for the Services.
"Export Control and Sanctions Laws and Regulations" means all laws and regulations under applicable law prohibiting or otherwise regulating the export, re-export, or (in-country) transfer of goods, technology, software, or services, or those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities.
"Harmful Code" means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.
"Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered "personal data", "personally identifiable information", or something similar under applicable laws, rules, or regulations relating to data privacy.
"Platform" means ProjectDiscovery's proprietary software vulnerability management platform utilized to provide the Services hereunder.
"Reseller" means a third party authorized by ProjectDiscovery to promote, distribute, and/or resell the Services.
"Order Form" means a written or electronic order form, executed by the parties, identifying the Services, scope, quantity, charges, and other information relevant to a specific transaction between Customer and ProjectDiscovery. Each Order Form will be governed by this Agreement and is incorporated herein by this reference.
"Sensitive Data" means: (i) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) protected health information as defined in the Health Insurance Portability and Protection Act, as amended ("HIPAA"); (iii) payment cardholder information or financial account information, including bank account numbers or other personally identifiable financial information; (iv) social security numbers, driver's license numbers, or other government identification numbers; (v) other information subject to regulation or protection under specific laws such as the Children's Online Privacy Protection Act ("COPPA") or the Gramm-Leach-Bliley Act ("GLBA"), in each case as amended, or related rules or regulations; or (vi) any data similar to the above protected under applicable laws, rules, or regulations.
"Services" means collectively, as applicable, Subscription Services, Support Services, and any other services Customer has ordered, and ProjectDiscovery has agreed to provide, as indicated in the applicable Order Form.
"Scan Results" means the vulnerability findings and associated remediation recommendations generated from the Subscription Services through the Platform in connection with Customer's Assets. Scan Results may be delivered in various formats, including PDF exports, email notifications, made available through the Platform interface or via API based exports.
"Statistical Usage Data" means usage data reflecting the access or use of the Subscription Services by or on behalf of Customer or an Authorized User, including statistical, functional, behavioral, or other operational metrics such as login activity, number of Assets uploaded or monitored, time and frequency of scan initiations, and the volume of Scan Results or vulnerability findings. For the avoidance of doubt, Statistical Usage Data will never include Customer Data, or Customer Confidential Information.
"Subscription Services" means the ProjectDiscovery software-as-a-service Platform and functionality, and all associated Updates, offered on a subscription basis by ProjectDiscovery via an Order Form that provides the functionality described in the Documentation.
"Subscription Term" means the period during which Customer is entitled to use the Subscription Services as outlined in the applicable Order Form.
"Support Services" means the type of ProjectDiscovery's customer support for the Subscription Services as specified or purchased within an Order Form and as set forth in the Service Level Agreement and Support Terms ("SLA") located at:https://projectdiscovery.io/sla-termsas may be updated from time to time (provided that ProjectDiscovery shall not make changes to the SLA during the Subscription Term that materially reduces the overall Support Services provided)s.
"Updates" means all updates and enhancements that ProjectDiscovery generally makes available at no additional charge to its customers of the version of the Subscription Services licensed hereunder who are current in payment of applicable Fees (defined below).
"Usage Metrics" means the metrics used to determine Customer's access and use of the Subscription Services and associated fees, as set out in an Order Form.
PROVISION OF SERVICES
Access to Subscription Services. Subject to Customer's compliance with this Agreement and timely payment of applicable Fees (described below), for the duration of the applicable Subscription Term, ProjectDiscovery shall make the Subscription Services available to Customer solely for Customer's internal business use at the Usage Metrics purchased by Customer, and in accordance with applicable law. Customer agrees that its purchase and use of the Subscription Services are not contingent on any future functionality or features, or dependent on any oral or written public comments made by ProjectDiscovery regarding future functionality or features.
Data Privacy and Security Measures. The parties do not anticipate that ProjectDiscovery will access, collect, or process any Personal Information in connection with the Services under this Agreement, except for the limited Personal Information necessary to administer and fulfill this Agreement such as business contact details ("Business Contact Data"). The Business Contact Data may include names, email addresses, and other similar contact information relating to Customer's Users or personnel and is solely used for administrative purposes and support purposes, as further described in ProjectDiscovery's Privacy Policy. ProjectDiscovery shall maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. For more information about these security measures, please visit https://security.projectdiscovery.io/.
Changes to Services. Subject to Subsection 8.2(b) below, ProjectDiscovery, may issue new releases for the Services during the Subscription Term which may include Updates, enhancements, or other modifications which will be included in the Fees set out in the Order Form.
AI Features. Certain portions of the Subscription Services may include or interoperate with AI Features that utilize AI Models provided by third-party models, such as OpenAI. These AI Features may generate AI Output based on inputs derived from Customer Data, including Scan Results or Asset related information. All AI Output shall be deemed Customer Data under this Agreement. Customer acknowledges and agrees that, due to the nature of generative AI, similar or identical AI Output may be generated for ProjectDiscovery's other customers based on independent queries or prompts. ProjectDiscovery will not use Customer Data or AI Output to train or fine tune any AI Models. ProjectDiscovery makes no representations or warranties that (a) any AI Output is free from third-party content or does not infringe third-party intellectual property rights, or (b) any AI Output is accurate, complete, or suitable for any specific use. Customer is solely responsible for reviewing and verifying any AI Output before its use.
Free Access Subscriptions. ProjectDiscovery may provide Customer with access to the Platform at no charge on a limited-use or trial basis, including but not limited to evaluation periods, proof of concept deployments, or time-limited access (e.g., a 7-day trial) ("Free Access Subscriptions"). The scope, duration, and permitted use of any Free Access Subscription may be further specified in an applicable Order Form. Unless otherwise expressly stated in such Order Form, ProjectDiscovery may terminate Customer's access to any Free Access Subscription at any time and for any reason, without liability; provided however, that ProjectDiscovery will use commercially reasonable efforts to provide at least fifteen (15) days prior written notice (email is sufficient) if it elects to (a) terminate a Free Access Subscription without cause, or (b) begin charging fees for continued access. All Free Access Subscriptions are provided by ProjectDiscovery "AS-IS" and without any representations, warranties, performance, or data security guarantees or support obligations.
USE OF SERVICES
Authorized Users. Only Authorized Users are permitted to access and use the Services. Customer shall be responsible for: (a) each Authorized Users' compliance with this Agreement and any applicable Order Form(s); (b) the accuracy and quality of Customer Data, the means by which Customer acquired such data, and ensuring that is has the necessary rights and permissions to use such data with the Services; (c) maintaining the confidentiality and security of usernames, passwords, and other account information (as applicable); (d) all activities that occur under its Authorized Users' credentials, whether or not authorized by Customer; and (e) ensuring all Authorized Users' use the Services only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. Customer shall notify ProjectDiscovery immediately of any unauthorized use of, or access to the Subscription Services. Customer acknowledges that ProjectDiscovery may contact Customer and Authorized Users in connection with their use of the Services.
Restrictions. Customer shall not, and shall not authorize or permit a third party to: (a) make any Services available to any third party other than Authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease Services, or include any Services in a service bureau, managed service or outsourcing offering; (c) use the Services to store or transmit Harmful Code; (d) scan Assets that Customer is not legally authorized to assess; (e) use the Services to submit, store, post or otherwise transmit Sensitive Data; (f) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (g) access the Services in a way that circumvents or exceeds the Usage Metrics set forth in the applicable Order Form; (h) access the Services in order to build a competitive product or service or to benchmark against any non-ProjectDiscovery offering; (i) reverse engineer, decompile, disassemble, copy, or otherwise attempt to discover the source code of any software used to provide the Services, except to the extent expressly permitted by applicable law in conflict with this restriction; or (j) interfere with, disable, or otherwise impair the Services in any way.
Unlawful Use of Services. Customer acknowledges that the Services may only be used in compliance with applicable law. Use of the Services for any illegal or unauthorized purpose shall constitute a material breach of this Agreement, and ProjectDiscovery may suspend or terminate the Services in its discretion.
Affiliates. Customer's Affiliate(s) may purchase Services under this Agreement if such Affiliate directly enters into an Order Form with ProjectDiscovery, and by doing so such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Affiliate's Order Forms, and the corresponding Usages Metrics, are separate and distinct from Customer's and other Affiliates' unless otherwise set forth on the Order Form.
THIRD-PARTY APPLICATIONS
Customer may elect to use certain third-party products, services, or applications ("Third-Party Applications") in connection with the Subscription Services, including via integrations enabled through ProjectDiscovery's API(s) as further described in the Documentation located at:https://docs.projectdiscovery.io/cloud/integrations, as may be updated from time to time. By enabling or using Third-Party Applications, Customer authorizes ProjectDiscovery to grant such Third-Party Applications access to Customer Data Third-Party Applications access to Customer Data or other relevant data to the extent necessary to enable interoperability with the Subscription Services. Third-Party Applications are subject to the third-party providers' additional terms and may require an additional fee to such providers in order to use the Third-Party Applications. Certain features of the Subscription Services may be designed to interoperate with specific Third-Party Applications. Such features are provided solely for convenience and are not deemed part of the Services under this Agreement. ProjectDiscovery may cease providing such features for any reason, including if the provider of the Third-Party Application ceases to make the Third-Party Application available for interoperation with the Services, without entitling Customer to any refund, credit, or compensation.
FEES AND PAYMENT
Fees. Customer shall pay ProjectDiscovery all fees as set forth in the applicable Order Form ("Fees"), as well as any Overages as defined in Section 5.5 below. Except as set forth in Section 8.2, all payment obligations are non-cancelable, and Fees paid are non-refundable.
Payment Terms. Except as otherwise set forth in the applicable Order Form, all Fees will be billed annually in advance. All invoices for Fees are due and payable within the time frame set forth in the applicable Order Form, without deduction or setoff. Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law ("Late Payment Interest"). Customer is responsible for providing complete and accurate billing and contact information to ProjectDiscovery and notifying ProjectDiscovery of any changes to such information. If Customer fails to pay any undisputed portion of a past due invoice within ten (10) business days after receiving notice that its account is overdue, ProjectDiscovery may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full ("Non-Payment Suspension"). ProjectDiscovery will not be obligated to continue to provide Services without payment of applicable Fees. Customer shall make all payments hereunder in US dollars by ACH, wire transfer, or credit or debit card payment. If Customer pays online via credit or debit card, Customer agrees to be bound by the Stripe, Inc., Services Agreement available at https://stripe.com/us/legal.
Use of Purchase Orders. No additional or inconsistent terms of any purchase order, or other form provided by Customer, will modify or supplement this Agreement, regardless of any failure of ProjectDiscovery to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.
Taxes. Customer is responsible for any sales, use, Goods and Services Tax (GST), value-added, withholding, or similar taxes or levies that apply to its Orders Forms (identified or not), whether domestic or foreign ("Taxes"), other than ProjectDiscovery's income tax. Fees and expenses are exclusive of Taxes.
Usage Verification. ProjectDiscovery may monitor Customer's use of the Subscription Services to assess compliance with the Usage Metrics set forth in the applicable Order Form. If ProjectDiscovery determines that Customer's usage materially exceeds the Usage Metrics set forth in the applicable Order Form (an "Overage"), ProjectDiscovery will notify Customer. Without limiting any other rights or remedies, ProjectDiscovery may (a) invoice Customer for such Overage at ProjectDiscovery's then-current standard rates, or (b) adjust the applicable fees prospectively for the remainder of the Subscription Term or upon renewal reflect the increased usage. For clarity, ProjectDiscovery will not charge Customer for incidental or minor Overages occurring during the then-current Subscription Term.
Purchases Through a Reseller. If Customer purchases Services through a Reseller, the pricing and payment terms are between Customer and Reseller ("Reseller Terms"). Customer acknowledges: (i) all payments for Services procured via a Reseller will be made directly to the Reseller and in accordance with the Reseller Terms, and (ii) if a Reseller notifies ProjectDiscovery of its right to terminate or suspend any Services, ProjectDiscovery may terminate or suspend such Services. ProjectDiscovery will not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any applicable Reseller Terms.
PROPRIETARY RIGHTS AND LICENSES
Ownership; Reservation of Rights. As between ProjectDiscovery and Customer, all rights, title, and interest in and to all intellectual property rights in the Services and ProjectDiscovery's Confidential Information are and will remain owned exclusively by ProjectDiscovery and its licensors. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of ProjectDiscovery will immediately vest in ProjectDiscovery upon creation. Nothing in this Agreement will preclude or restrict ProjectDiscovery from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services or other ProjectDiscovery intellectual property rights are granted to Customer, and all such rights are expressly reserved to ProjectDiscovery and its licensors.
Customer Data. As between Customer and ProjectDiscovery, Customer Data, AI Output, Customer Confidential Information are and will remain owned exclusively by Customer or the Authorized User, as applicable. Customer hereby grants ProjectDiscovery, its Affiliates, a worldwide, limited-term license to utilize Customer Data (subject to Section 2.2) as necessary for ProjectDiscovery to host, analyze, host, transmit, display, access, and otherwise use Customer Data to provide the Services in accordance with this Agreement and each Order Form executed hereunder.
Statistical Usage Data. Customer agrees that ProjectDiscovery and its Affiliates may collect, use, and otherwise process Statistical Usage Data for its own internal analysis, analytics, marketing, and other internal business purposes (e.g., improving ProjectDiscovery products and services). Except where Customer has expressly provided authorized consent, ProjectDiscovery will only disclose Statistical Usage Data if such data is (a) aggregated or anonymized, and (b) does not disclose the identity of Customer or its Authorized Users or any Customer Confidential Information.
Feedback. To the extent that Customer or its Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation ("Feedback"), Customer hereby grants ProjectDiscovery an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution.
CONFIDENTIALITY
Definition of Confidential Information. "Confidential Information" means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), 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. Confidential Information of Customer includes Customer Data; Confidential Information of ProjectDiscovery includes the Services; and Confidential Information of each party includes the terms of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that the Receiving Party can demonstrate (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party shall (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party's prior written consent, on condition that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants shall remain responsible for such Affiliate's, legal counsel's, and accountants' compliance with this "Confidentiality" Section.
Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS
General Warranty. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
ProjectDiscovery Limited Warranties. ProjectDiscovery warrants that (a) the Subscription Services will perform materially in accordance with the applicable Documentation; (b) ProjectDiscovery will not materially decrease the overall functionality of the Services during the current Subscription Term; (c) ProjectDiscovery will use industry standard measures to prevent ProjectDiscovery from introducing Harmful Code through the Subscription Services; and (d) ProjectDiscovery will perform the Support Services in a diligent and professional manner. Customer's exclusive remedy and ProjectDiscovery's entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or, if ProjectDiscovery cannot accomplish the foregoing in a commercially reasonable manner, as determined in its reasonable discretion, ProjectDiscovery may terminate the deficient service and refund to Customer the Fees for the terminated Service that Customer prepaid to ProjectDiscovery, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY OR ITS LICENSORS MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PROJECTDISCOVERY DOES NOT WARRANT THAT SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, THAT ITS SECURITY MEASURES WILL BE ABSOLUTELY SECURE FROM UNAUTHORIZED ACCESS, OR THAT THE SUBSCRIPTION SERVICES WILL DETECT EVERY VULNERABILITY IN OR TO CUSTOMER'S NETWORK OR SYSTEMS. CUSTOMER SHALL NOT RELY ON THE RESULTS ACHIEVED FROM THE SUBSCRIPTION SERVICES AS AN INDICATION THAT CUSTOMER'S NETWORK OR SYSTEMS ARE SECURE.
INDEMNIFICATION
ProjectDiscovery Indemnification.
- (a) ProjectDiscovery shall defend any claim brought against Customer by a third-party to the extent such claim alleges that Customer's use of the Subscription Services (as authorized in this Agreement, and as provided by ProjectDiscovery to Customer) infringes any valid and enforceable third-party patent, copyright, or validly registered trademark, or misappropriates a third-party trade secret (a "Claim"). If a third party makes a Claim against Customer, ProjectDiscovery shall pay all damages (including reasonable attorneys' fees) finally awarded against Customer by a court of competent jurisdiction, or the settlement agreed to by ProjectDiscovery.
- (b) If any Claim is brought or threatened, or if ProjectDiscovery reasonably believes that the Subscription Services may become the subject of a Claim, ProjectDiscovery may, at its sole option and expense (1) procure for Customer the right to continue to use the applicable Subscription Service; (2) modify the Subscription Service to make it non-infringing; (3) replace the affected aspect of the Subscription Service with non-infringing technology having substantially similar capabilities; or (4) if ProjectDiscovery determines none of the foregoing is commercially practicable, terminate this Agreement upon thirty (30) days' written notice and refund Customer any prepaid Fees related to the Subscription Services prorated for the remainder of the Subscription Term.
- (c) ProjectDiscovery's defense and indemnity obligations do not apply to the extent that, and ProjectDiscovery will have no liability with respect to (1) any modification of the Subscription Services made by anyone other than ProjectDiscovery, (2) any use of the Subscription Services in combination with software, products, or services not provided by ProjectDiscovery, (3) any Third-Party Applications; (4) Services under an Order Form for which there is no charge; (5) Customer's use of the Subscription Services not in compliance with this Agreement; or (6) Customer's failure to use any modification or Update provided by ProjectDiscovery.
This indemnity states ProjectDiscovery's entire liability, and Customer's exclusive remedy, for any third-party Claims as described in Section 9.1.
Indemnification by Customer. Customer shall defend any claim brought against ProjectDiscovery by a third party to the extent such claim relates to (a) the Customer Data (if used by ProjectDiscovery in accordance with this Agreement) or (b) use of the Subscription Services in breach of Sections 3.2(d) and 3.3. If a third party makes such a claim against ProjectDiscovery, Customer shall pay all damages (including reasonable attorneys' fees) finally awarded against ProjectDiscovery, (or amounts agreed in a monetary settlement) with respect to such claim. This indemnity states Customer's entire liability, and ProjectDiscovery's exclusive remedy, for any third-party claims as described in this Section 9.2.
Procedure. The defense and indemnity obligations above are conditioned upon the indemnified party providing the indemnifying party with (a) prompt written notice, (b) sole control over the defense and any settlement negotiations, and (c) all information and assistance reasonably requested by the indemnifying party in connection with the defense or settlement of the indemnifiable claim, on condition that the indemnified party's prior written consent will be required with regard to any settlement that imposes any obligation or liability on the indemnified party, such consent not to be unreasonable withheld, conditioned, or delayed. The indemnified party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying party.
LIMITATION OF LIABILITY
Exclusion of Damages.. NEITHER PARTY (OR ITS AFFILIATES) WILL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, OR GOODWILL, OR BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, COSTS OF SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW
Limitation of Liability. A PARTY'S (AND ITS RESPECTIVE AFFILIATES') AGGREGATE CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE APPLICABLE SUBSCRIPTION FEES PAID OR PAYABLE TO PROJECTDISCOVERY FOR THE SUBSCRIPTION SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT EXPAND THIS LIMIT. THE LIABILITY LIMITATIONS UNDER THIS SECTION 9.2 WILL NOT APPLY TO (A) CUSTOMER'S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT; (B) CUSTOMER'S BREACH OF SECTIONS 3.1 OR 3.2; (D) EITHER PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
TERM AND TERMINATION
Term of Agreement. This Agreement will commence on the Effective Date and continue until terminated as permitted herein (the "Term"). If there are no active Order Forms, this Agreement may be terminated by either party upon ninety (90) days' prior written notice.
Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will commence and expire in accordance with the start date and end date set forth in the Order Form. Unless otherwise specified in an Order Form, a Subscription Term will automatically renew for one (1) year on the same terms, unless either party gives the other party written notice (email is sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Any new Subscription Service subsequently added to Customer's subscription will be coterminous with the current Subscription Term.
Suspension. In the event of Customer's or an Authorized User's breach of this Agreement, including without limitation for Non-Payment Suspension or violation of the restrictions in Section 3.2, ProjectDiscovery may, in its reasonable discretion, suspend Customer's or an Authorized User's access to or use of the Subscription Services. Notwithstanding the foregoing, ProjectDiscovery shall use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or an Authorized User via email before taking the foregoing actions.
Termination. Either party may terminate this Agreement or any Order Form by written notice if the other party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt, Customer's noncompliance with Section 3.2 is deemed a material breach of this Agreement. This Agreement may be terminated by either party with immediate effect if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.
Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Order Forms and access to the Subscription Services will automatically terminate; (b) Customer and its Authorized Users shall immediately cease access and use of the Subscription Services, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations of Customer will become due and payable immediately; and (d) for thirty (30) days following the termination of this Agreement ProjectDiscovery shall make Customer Data available to Customer, at Customer's request, via read-only access to the Subscription Service, solely for purpose of allowing Customer to retrieve Customer Data. After thirty (30) days, ProjectDiscovery will have no obligation to maintain or provide any Customer Data and thereafter may delete or destroy all copies of Customer Data, except if ProjectDiscovery is required to retain a copy of such Customer Data for legal purposes, on condition that such copy remains subject to the confidentiality provisions of this Agreement.
Surviving Provisions. The Sections titled "Fees and Payment," "Proprietary Rights and Licenses," "Confidentiality," "Representation, Warranties, Exclusive Remedies, Disclaimers," "Term and Termination," "Indemnification," "Limitation of Liability," and "General Provisions" will survive any termination of this Agreement.
GENERAL PROVISIONS
Publicity and Reference. Except as set forth in the applicable Order Form, Customer grants ProjectDiscovery the right to use Customer's company name and logo as a reference for marketing or promotional purposes on ProjectDiscovery's website and in other public or private communications with existing or potential customers, subject to Customer's standard trademark usage guidelines as provided to ProjectDiscovery from time-to-time. If, at any time, Customer does not wish to be used as a ProjectDiscovery reference, Customer may revoke such grant in part or in whole by sending an email stating its intent to marketing@projectdiscovery.io.
Export Control. Each party shall comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to U.S. jurisdiction (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Customer shall not, and shall ensure that Authorized Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c) Customer shall not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
Anti-Corruption. Neither party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other party in connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.
U.S. Government Rights. This Agreement will be governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. The Services and Documentation comprise "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3.
Governing Law & Dispute Resolution. If Customer, or any Authorized User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Services and Documentation comprise "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3.
Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each party set forth on the Order Form, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit via certified mail, or upon confirmation of receipt if sent by email.
Force Majeure. Neither party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes beyond the reasonable control of the affected party (each a "Force Majeure Event"). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
Assignment. Neither party may assign this Agreement, in whole or part, without the prior written consent of the other party, which will not be unreasonably withheld, and any other attempt to transfer a party's rights or obligations under this Agreement will be void; however, either party may assign this Agreement without consent to an Affiliate, in the event of a merger, corporate reorganization, or to a purchaser of a party's business entity in the event of a sale of all or substantially all of its business or assets relating to this Agreement, or other change of control, on condition that the purchaser is not a competitor of the other party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any other attempt to transfer a party's rights or obligations under this Agreement is void.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes
Entire Agreement; Order of Precedence. This Agreement (together with any Order Forms, and linked terms) contains the entire agreement of the parties concerning the subject matter of this Agreement and supersedes all prior communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter. This Agreement may only be amended or waived by a writing signed by both parties. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) Order Form, (2) this Agreement, and (3) any links provided herein.
Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. This Agreement is in the English language only, which language is controlling in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the parties. Waiver of any term of this Agreement or forbearance to enforce any term by either party will not constitute a waiver as to any subsequent breach or failure of the same term, or a waiver of any other term of this Agreement. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that ProjectDiscovery will have no obligations or liability whatsoever to any third parties with which Customer does business.