SIXGILL End User Agreement

THIS SIXGILL END USER AGREEMENT, TOGETHER WITH THE SIXGILL PRIVACY POLICY (AVAILABLE AT: https://cybersixgill.com/privacy-policy (COLLECTIVELY, THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND SIXGILL (DEFINED BELOW) WHICH SHALL BE EFFECTIVE AS OF THE DATE OF ACCEPTANCE VIA AN ORDER OR SOW (EACH DEFINED BELOW) OR UPON YOUR ACCESS TO THE SOLUTION (THE “EFFECTIVE DATE”). YOU ACCEPT THIS AGREEMENT BY USING THE SOLUTION OR OTHERWISE ACKNOWLEDGING YOUR ACCEPTANCE (FOR EXAMPLE, BY LOGGING INTO THE SOLUTION OR SIGNING AN ORDER OR SOW REFERRING TO THESE TERMS, YOU AGREE TO THE TERMS OF THIS AGREEMENT). BY ACCESSING THE SOLUTION AND AGREEING TO THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO WHOM YOU REPRESENT. ACCEPTANCE OF THIS AGREEMENT IS A CONDITION OF YOUR ACCESS TO THE SOLUTION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SOLUTION. 

Sixgill may unilaterally change or add to the terms of this Agreement at any time. In the event of a material change, Sixgill shall notify you via email or by means of a prominent notice on the Sixgill website available at: https://cybersixgill.com/privacy-policy  which you should check periodically. By continuing to use the Solution following such modifications, you agree to be bound by such modifications.

Unless otherwise set forth in the applicable Order or SOW, “Sixgill” shall be defined as follows: (i) for Customers registered in the USA, Sixgill USA, Inc.; and (ii) for Customers registered anywhere else in the world, Sixgill, Ltd.

1. Grant of Right to Use and Restrictions.

   1. Right to Use. Subject to the terms and conditions of this Agreement and the terms and conditions of a written order provided by Sixgill and signed by you or otherwise signed by both parties or agreed between you and an authorized reseller of Sixgill (the “Order”), Sixgill hereby grants you during the applicable subscription term specified in the Order or SOW, and you accept, a limited, non-exclusive, non-sublicensable and non-transferable (except as otherwise permitted in Section 13) right to use the Solution and Deliverables during the Term internally, solely for your internal business purposes and in accordance with the terms of this Agreement and subject to any specific use limitations specified in the Order. “Solution” means the Sixgill proprietary solution and API identified in the applicable Order and all manuals, specifications, and other documentation provided by or on behalf of Sixgill, as well as any updates or upgrades provided by Sixgill herein. “Deliverables” mean any content or data obtained through or from the Solutions. Please note that Use of the API provided as part of the Solution shall be subject to those additional terms available at https://cybersixgill.com/api-restrictions which are hereby incorporated into this Agreement and made an integral part hereof. 

   2. Services. If you enter into one or more statements of work for Sixgill’s Services (defined herein), provided by Sixgill and signed by you or otherwise signed by both parties (“SOW”), Sixgill will provide you with the services set forth in such SOW (the “Services”). As part of the Services, you may access and use services that are provided by a third party service provider (“Third Party Services”) and any such access and/or use of Third Party Services is, and shall remain, a direct engagement between you and such third party service provider. Sixgill is not, and shall not be, liable or responsible in any way and for any reason for any Third Party Services and your access or use thereof. Should you access and/or use Third Party Services, you do so at your own risk, and you are encouraged to carefully read and abide by the terms of use and privacy policies of such Third Party Services.

   3. Restrictions. Except as expressly permitted herein, you shall not, directly or indirectly: (i) modify, incorporate into or use the Solution with other software, or create a derivative work of any part of the Solution or Deliverables; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share the Solution or Deliverables or any of your rights under this Agreement with or to anyone else; (iii) copy or reproduce, distribute or publish the Solution or the Deliverables; (iv) use or permit the Solution or Deliverables to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, including by using the Deliverables in order to generate any insights, reports or analysis; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Solution or Deliverables, or use such results for your own competing software development activities; (vi) modify, disassemble, decompile, reverse engineer, revise or enhance the Solution or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Solution or use the Solution for purposes of competitive analysis or the development of a competing software product or service; (vii) remove or otherwise alter any of Sixgill’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Solution or Deliverables; (viii) allow the Solution or Deliverables or results of any Services to be used for or access thereto provided to any entity or person involved in, or in charge of, homeland security or counter-terrorism and you shall not ship, transfer, or export the Solution or Deliverables or use the Solution or Deliverables in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Solution in violation of Section 11 (OFAC and Sanctions Compliance; Country Restrictions); (ix) exceed any use limitations or other restrictions which are specified in the Order, SOW or the Use of API additional terms found here: https://cybersixgill.com/api-restrictions; (x) contest Sixgill’s Intellectual Property Rights (as defined below) to the Sixgill IPR (as defined below); (xi) use the Solution or Deliverables for any purpose other than as permitted by this Agreement, including attempting to access any part of the Solution or Sixgill’s systems without authorization or access Sixgill’s servers by unauthorized means, including overburdening the Solution or its servers and systems with excessive system or API calls; (xii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Solution, such as features that restrict or monitor use of the Solution; (xiii) use the Solution to access any confidential or other non-public information of any third party without such third party’s consent and/or collect, copy or use any Deliverables in a manner that infringe or violate the rights of any third party, including without limitation applicable privacy rights and Intellectual Property Rights; (xiv) cause or permit any third party to do any of the foregoing. You are solely responsible for acquiring and maintaining all hardware, software and services necessary to access and make use of the Solution, including without limitation paying all fees and other costs related to internet access, server or cloud account subscription and maintenance.

2. Consideration. The consideration for the right to use the Solution, Deliverables or Services granted hereunder, will be in accordance with the payment terms, subscription plans and metrics specified in the Order or SOW. Unless otherwise specified in the Order or SOW, (i) you will pay all amounts due under this Agreement in U.S. Dollars, and (ii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice. All amounts payable under this Agreement are exclusive of sales, use, value-added, withholding, and other taxes and duties. You shall pay all taxes and duties assessed in connection with this Agreement by any authority. If any such tax or duty has to be withheld or deducted from any payment under this Agreement, you shall gross-up the payment under this Agreement by such amount to ensure that after such withholding or deduction Sixgill shall receive an amount equal to the payment otherwise required. All payments not made when due shall bear interest at the rate of 1.5% per month, or at the highest interest rate allowed by law, whichever is less, from the due date until paid.

3. Confidentiality. 

   1. “Confidential Information” means all information of either party, whether of a technical, business or other nature (including, without limitation, pricing, commercial terms, trade secrets, know-how and information relating to the technology, strategic partners, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is disclosed by the disclosing party to the receiving party or that is otherwise learned by the receiving party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of or services of, the disclosing party, and that has been identified as being proprietary and/or confidential or that the receiving party by the nature of the circumstances surrounding the disclosure or receipt ought to know should be treated as proprietary and confidential. For the avoidance of doubt, Confidential Information of Sixgill shall include, without limitation, the Solution, Deliverables, Third Party Services, and Services as well as any other non-public or proprietary information or materials provided by Sixgill, whether in tangible or intangible form. Confidential Information of Customer shall include non-public data (e.g., assets and user information) provided by Customer to Sixgill to enable the provision and use of the Solution (“Customer Data”).  Customer hereby grants to Sixgill a worldwide, royalty-free, nonexclusive, transferable right and license to store, host and display any Customer Data within the Solution. 

   2. The definition of Confidential Information shall not include any information that the receiving party can demonstrate through written documentation: (i) was already known to the receiving party prior to its disclosure to the receiving party; (ii) was or becomes known or generally available to the public (other than by act of the receiving party); (iii) is disclosed or made available in writing to the receiving party without an obligation of confidentiality by a third party having a bona fide right to do so; (iv) is independently developed by receiving Party without the use of any of the other party’s Confidential Information; or (v) in the case of Customer, Feedback (as defined and further described in Section 4). In addition, either party shall be permitted to disclose Confidential Information, as required to be disclosed to a regulator with competent jurisdiction over such Party or by compulsory process of law, provided that the receiving party will notify the disclosing party promptly upon any request or demand for such disclosure and shall cooperate with the disclosing party to preclude or minimize any such disclosure.

   3. Each party shall use the Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and you shall not disclose or make available the Confidential Information provided by Sixgill to any third party, except to your employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Each party shall take measures at a level at least as protective as those taken to protect its own Confidential Information (but in no event less than a reasonable level) to protect the Confidential Information. You will promptly notify Sixgill in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information. This Section 3 shall survive up to five years after the termination of this Agreement for whatever reason.

   4. The Parties acknowledge that any breach of this Section 3 may cause immediate and irreparable injury to the non-breaching party and that monetary damages may be inadequate compensation for such breach. In the event of such breach, the non-breaching party will be entitled to seek injunctive relief, without the need to post bond, in addition to all other remedies available to it at law or in equity. This Section in no way limits the liability or damages that may be assessed against a party breaching any of the provisions of this Section 3.

4. Title & Ownership; Anonymous Data. Except for the rights granted hereunder, all right, title and interest, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Solution, Deliverables, Services, Confidential Information and any and all related documentation, including Sixgill trademarks and service marks (including its logos) and any associated Intellectual Property Rights are retained by Sixgill and its licensors (collectively, “Sixgill IPR“). Except as otherwise provided herein, you hereby retain all right, title, and interest in your Confidential Information, which shall include Customer Data and your trademarks and service marks (including your logos). “Intellectual Property Rights” means any and all right, title and interest in and to patents, inventions, discoveries, copyrights, works of authorship, trade secrets, trademarks, service marks, trade dress, technical information, data, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, software, code, algorithms, architecture, records, documentation, and other similar intellectual or industrial property, in any form and embodied in any media, whether capable of protection or not, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof. This Agreement does not convey to you an interest in or to the Sixgill IPR, but only a limited revocable right to use the Solution and Deliverables in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Sixgill IPR under any law and you undertake not to contest Sixgill’s ownership in the Sixgill IPR. If you provide Sixgill with feedback (e.g., questions, comments, ideas, suggestions, liking and disliking applicable output) regarding the Solution or Deliverables (collectively, “Feedback”) then Customer hereby grants Sixgill a worldwide, perpetual, irrevocable, nonexclusive, transferable, and royalty-free right and license to use Feedback in connection with Solution, Deliverables and Services and such license grant shall survive termination of this Agreement. You may provide to Sixgill and Sixgill may collect, disclose, publish, store and use in any manner any anonymous, aggregated, and/or non-identifiable information, which is derived from your use of the Solution or use of Third Party Services (“Anonymous Information“), in order to provide and improve Sixgill’s Solution or such Third Party Services and for any other business purposes. Sixgill is and shall remain the owner of the Anonymous Information which shall be deemed Sixgill IPR.

5. Warranties and Representations. Each party represents and warrants to the other party that it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder. Sixgill further represents and warrants that it will comply with all applicable laws and regulations in the provision of the Solution, Deliverables and Services. Customer further represents and warrants that (i) it has all required permissions, authorizations and approvals to request, collect and use any and all Deliverables and any data and content requested by Customer as part of the Services; (ii) it shall not intentionally provide account or other information (such as Feedback defined in Section 4) to Sixgill that it knows are or would be inaccurate in any material respect, nor shall it provide Customer Data (such as assets) that it does not own,  and it will make reasonable efforts to keep such information accurate during the Term; (iii) it has all necessary consents and permissions to provide any information, including Customer Data, that it uploads in the Solution or otherwise supplies to Sixgill in connection with the Solution, Deliverables or Services; (iv) it will comply with all applicable laws and regulations in its use and access of the Solution, Deliverables and Services; and (v) that it shall not permit any users of the Solution or Deliverables or personnel located in China (including the special administrative regions of Hong Kong and Macau) to access any Personally Identifiable Sensitive Data (as defined in the Protecting Americans’ Data from Foreign Adversaries Act of 2024) of U.S. individuals provided as part of the Solution or Deliverables. Further, Customer agrees to implement appropriate controls to ensure compliance with this restriction and shall promptly notify Sixgill of any unauthorized access or non-compliance. Failure to comply with this provision constitutes a material breach of this Agreement.

6. Disclaimer of Warranty.

   1. THE SOLUTION, DELIVERABLES AND SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SIXGILL DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, SECURITY AND NON-INFRINGEMENT. THE SOLUTION, DELIVERABLES AND/OR SERVICES DO NOT CONSTITUTE INVESTMENT OR FINANCIAL ADVICE, NOR RECOMMENDATIONS TO PURCHASE, SELL, OR HOLD PARTICULAR SECURITIES. ANY CONSULTATION OR RECOMMENDATIONS PROVIDED BY SIXGILL ARE MADE AVAILABLE FOR YOUR CONVENIENCE AND ARE NOT ADVICE AND YOU SHALL HAVE THE SOLE RESPONSIBILITY TO CONSIDER WHETHER TO IMPLEMENT THEM AND WILL BEAR THE SOLE RISK OF DOING SO. 

   2. THE DELIVERABLES AND ANY RESULTS OF THE SERVICES ARE BASED ON INFORMATION AND CONTENT COLLECTED FROM THE DARK AND DEEP-WEB AND SUCH OTHER THIRD PARTY SOURCES AND THEREFORE SIXGILL DOES NOT WARRANT THAT THEY ARE CORRECT, COMPLETE, ACCURATE OR RELIABLE. SIXGILL DOES NOT WARRANT THAT THE SOLUTION, OR DELIVERABLES WILL OPERATE WITHOUT INTERRUPTIONS OR ERRORS OR THAT ANY ERRORS OR BUGS WILL BE REPRODUCIBLE OR REPAIRABLE. FURTHER, UNLESS OTHERWISE AGREED BETWEEN THE PARTIES, SIXGILL DISCLAIMS ANY WARRANTY OF CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE RELATED TO THE SOLUTION, DELIVERABLES OR SERVICES. YOU SHALL BE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE ARE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ANY USE OF OR RELIANCE UPON THE SOLUTION, DELIVERABLES OR SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SOLUTION INCLUDING ANY USE AND OUTPUT FROM AI FEATURES AND FUNCTIONALITY.

   3. The Solution may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by Sixgill of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Sixgill is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of materials on such External Sites. If you decide to access linked External Sites, you do so at your own risk.

7. Limitation of Liability. 

   1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS, PARTNERS, RESELLERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, INSURERS OR CONTRACTORS (“RELATED PARTIES”) BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS OR DATA OR OTHER ECONOMIC LOSS) ARISING FROM ANY CAUSE OF ACTION OR LEGAL THEORY, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY OR FAILURE OF ESSENTIAL PURPOSE EVEN IF THE PARTY OR A RELATED PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

   2. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, THE MAXIMUM LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WILL IN NO CIRCUMSTANCE EXCEED THE FEES PAID OR OWED TO SIXGILL IN THE PAST TWELVE (12) MONTHS UNDER THIS AGREEMENT.

   3. SECTIONS 7.1 AND 7.2 WILL NOT APPLY WITH RESPECT TO ANY CLAIMS BASED ON A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR BREACH OF ITS OBLIGATIONS UNDER SECTION 1.1 (RIGHT TO USE), SECTION 1.3 (RESTRICTIONS), SECTION 8 (INDEMNIFICATION), OR SECTION 3 (CONFIDENTIALITY), OR ANY OTHER CLAIMS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY LAW.

8. Indemnification. 

   1. Customer Obligation. You agree to defend, indemnify and hold harmless Sixgill, its affiliates, licensors, suppliers, officers, directors, employees and agents, (the “Indemnified Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) the Deliverables or the content or data provided as part of the Services or Solution or your use thereof, including use of Third Party Services; (ii) your violation of any term of this Agreement or any law, rule, regulation or order, or your violation of any terms and conditions of a Third Party Services; (iii) takedown services requested by you, including any request or approval by or on your behalf to seek the suspension or removal of any website, social media page or other online asset (including for the avoidance of doubt, violations of export compliance); and/or (iv) your provision of Customer Data to Sixgill. Customer may not settle a claim that provides for Sixgill liability without Sixgill’s prior written consent. Customer will pay those costs and damages finally awarded in any such legal action, or in a settlement of such legal action, that are specifically attributable to the claim.

   2. Sixgill Obligation. Sixgill shall defend, at its own expense and with attorneys of its choosing, any legal action against Customer and its respective Indemnified Parties collectively brought by a third party to the extent that the legal action is based upon a claim that the Solution infringes any intellectual property rights of a third party. Sixgill will pay those costs and damages finally awarded to such third-party claimant in any such legal action, or in a settlement of such legal action, that are specifically attributable to the claim. THIS SECTION STATES SIXGILL’s ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY SERVICES, TECHNOLOGY, SOLUTION OR DELIVERABLES OR BY THEIR DISTRIBUTION, OPERATION, USE OR RECEIPT.

   3. Process Obligations. The foregoing indemnification obligations are conditioned on each party: (i) promptly giving the other party written notice of any such legal action; (ii) giving the indemnifying party sole control of the defense of any such claim and all related settlement negotiations; and (iii) assisting and fully cooperating in such defense, at the indemnifying party’s request and expense. In the event that the Solution becomes, or in Sixgill’s opinion is likely to become the subject of an infringement claim, then Sixgill may, at its sole discretion and expense, either: (i) replace or modify the Solution to render them non-infringing; (ii) procure for Customer the right to continue to use the allegedly infringing Solution; or (iii) terminate Customer’s right to use the Solution and/or terminate this Agreement, in whole or in part, as appropriate, upon written notice to Customer and refund Customer (or authorized partner or reseller if the initial payment was made by such partner or reseller) any prepaid fees attributable to the remainder of the term of Customer’s subscription to the applicable Solution. Each party will have the right to participate, at its expense, in the defense of any claim covered under this Section with counsel of its own choosing; provided, however, the Indemnified Party may not make any admission of responsibility or guilt without the consent of the other party. Notwithstanding the foregoing, Sixgill shall have no obligation under this Section or otherwise with respect to any infringement claim based upon any use of the Solution not in accordance with this Agreement; any use of the Solution in combination with equipment, software, or data not supplied by Sixgill if such infringement would have been avoided but for the combination with other equipment, software or data; any modification of the Solution by any person other than Sixgill or as authorized by Sixgill in writing; or Customer’s continued use of the allegedly infringing Solution after written notice to cease such use.

9. Term and Termination. The term of this Agreement commences on the Effective Date and the subscription to the Solution, Deliverables and/or Services shall be as set forth in the Order or the SOW, as the case may be, and may be terminated earlier in accordance with this Section (“Term”); provided, however, this Agreement shall continue until all subscriptions hereunder have expired or have been terminated and access to the Solution has been terminated (including subscriptions under free access programs). Sixgill may terminate this Agreement or any Order of SOW at any time for convenience with two (2) days’ notice. Without derogating from the foregoing, Sixgill may terminate this Agreement or any Order or SOW immediately without notice if you fail to comply or violate any provision of this Agreement. You may terminate this Agreement or an Order or SOW upon Sixgill’s breach of this Agreement should Sixgill fail to cure such breach within thirty (30) days of notice of such breach. Upon termination of this Agreement: (i) the rights granted to you in this Agreement shall expire and you, upon termination, shall discontinue all further use of the Solution or Deliverables; (ii) you shall promptly remove the Solution and Deliverables from all hard drives, networks and other storage media and destroy all copies of the Solution in your possession or under your control; (iii) any sums paid by you until the date of termination are non-refundable, and you shall not be relieved of your duty to discharge in full all due sums owed by you to Sixgill under this Agreement, which sums shall become immediately due and payable on the date of termination of the Agreement; and (iv) you shall, at Sixgill’s election, erase or return to Sixgill all Confidential Information in your possession or under your control. In the event of your termination due to Sixgill’s breach or Sixgill’s termination for convenience you shall be provided a pro-rata refund of unused prepaid fees. Sections 1.3 and 2-16 shall survive any termination of this Agreement.

10. Privacy. Customer acknowledges that Sixgill’s privacy practices are governed by Sixgill’s Privacy Policy available at https://cybersixgill.com/privacy-policy, which is an integral part of this Agreement. It is hereby agreed that Sixgill and Customer are each a controller under all laws, regulations, and standards applicable to Sixgill’s provision of the Services where personal data is processed, including but not limited to the Regulation (EU) 2016/679 (General Data Protection Regulation) (collectively “Applicable Data Protection Laws”), and Sixgill may transfer Personal Data (as defined in Applicable Data Protection Laws), including special categories of Personal Data, to the Customer, acting as a controller, strictly for the purpose of delivering cybersecurity services as specified in this Agreement. Where such transfers involve the movement of Personal Data from the European Economic Area or other jurisdictions requiring a lawful data transfer mechanism, the Parties agree that such transfers shall be governed by the Standard Contractual Clauses approved with Commission Implementing Decision (EU) 2021/914 of June 4, 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, as amended, supplemented, updated or replaced from time to time (“SCCs”) incorporated by reference into this Agreement or any other lawful mechanism compliant with Applicable Data Protection Laws. To the extent required by Applicable Data Protections Laws, Customer may reasonably request additional information from Sixgill for the purposes of the SCC. Notwithstanding the foregoing, the Parties further agree that to the extent the California Consumer Privacy Act as amended by the California Privacy Rights Act (together, “CCPA”), is applicable, Sixgill will act as a Business under the CCPA where it processes personal data provided to it by Customer, and where Customer queries any personal data for use of the Solution and Deliverables, Sixgill will act as a Service Provider under the CCPA.  Customer warrants that it has obtained any required consents or lawful bases for the transfer of Personal Data to the Customer and has implemented appropriate safeguards to ensure the protection of such data. The Customer agrees to process the Personal Data in compliance with Applicable Data Protection Laws, applying appropriate technical and organizational measures to ensure its security and confidentiality, and to return or delete the Personal Data upon Sixgill’s request unless otherwise required by law.

11. OFAC and Sanctions Compliance; Country Restrictions. The parties agree to comply with the laws and regulations regarding the offering of unlawful or improper inducements (including the U.S. Foreign Corrupt Practices Act, as amended, and other anti-corruption and anti-bribery laws). Further, Customer represents and warrants that it is not: (i) subject to any economic or financial sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) or any other governmental authority having jurisdiction over the parties to this Agreement, that prohibits Sixgill from providing the Solution and Deliverables under this Agreement; (ii) directly or indirectly owned or controlled by any person(s) or companies, whether individually or in the aggregate, that are sanctioned pursuant to the foregoing restriction; (iii) subject to comprehensive geographic sanctions imposed by the U.S. Government, including but not limited to being organized or headquartered in or a governmental entity of a country or territory subject to such sanctions (e.g., Cuba, North Korea, Iran, Syria, and the Crimea, Donetsk, and Luhansk regions in Ukraine); or (iv) located in Belarus, Russia, or Venezuela. Additionally, Customer warrants that it does not intend to and will not knowingly supply or use the Solution and Deliverables to or for the benefit of any of the foregoing. In addition to the foregoing, Solution and Deliverables are not available for commercial use in Mainland China. Sixgill may suspend access to the Solution and Deliverables if Customer violates any provisions of this Section 11.

12. Government Contracts. To the extent Customer is an entity of the United States federal government and to the extent any software is licensed hereunder, such software is “commercial computer software,” as that term is defined in Federal Acquisition Regulation (“FAR”) 2.101. In accordance with FAR 27.405-3, FAR 52.227-19, and/or Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202-1, as applicable, any software or other products or services provided to the Government are provided in accordance with Sixgill’s standard commercial license.

13. Assignment. Except as otherwise permitted in this Agreement, neither party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party (which consent will not be unreasonably withheld), except that a party may, without the written consent of the other party hereto, assign its rights together with its obligations under this Agreement to the surviving entity in a merger or consolidation or to a purchaser of all or substantially all the assets of its business. Upon request, Customer shall provide and/or execute appropriate documentation to evidence the transfer of the relevant Sixgill account(s). Any assignment or delegation in contravention of this provision will be null and void. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

14. Third-Party Beneficiaries. To the extent Sixgill provides any Third-Party Services to Customer, such third-party service provider(s) are expressly made third-party beneficiaries of this Agreement. Other than in respect of such third-party service provider(s), nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, any rights, remedies, obligations or liabilities whatsoever upon any person other than the parties and their permitted successors or assigns.

15. Miscellaneous. This Agreement shall be construed and governed in accordance with the laws of and be subject to the exclusive jurisdiction of: (i) for Customers registered in the USA, the State of Delaware, USA and the Federal and State courts of Delaware, USA; and (ii) for Customers registered anywhere else in the world, the State of Israel and the competent courts of Tel Aviv-Jaffa, Israel, and each party hereby submits itself to the exclusive jurisdiction of these courts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement, along with the associated Order and/or SOW, represents the complete agreement concerning the rights granted to you herein and the subject matter hereof and may be amended as set forth in the preamble to this Agreement above or by a written agreement executed by both parties. Except for modifications expressly provided for in an Order or SOW which shall control, to the extent any conflict arises between the terms and conditions of this Agreement and those contained in the Order and SOW, the terms and conditions contained in this Agreement shall prevail. Each party acknowledges that, in entering into this Agreement, it does not rely upon, and shall have no remedy in respect of, any statement or representation of any person other than as expressly set out in this Agreement. Any requirements, documents or terms and conditions that may be contained in any vendor portal, acknowledgement, purchase order, form, platform, click-wrap, or shrink-wrap that Customer provides are specifically null and void. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. 

I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.