CENSYS, INC.
TERMS OF SERVICE
The following Censys, Inc. Terms of Service (these “Terms of Service”) apply to the organization submitting a Censys Teams Subscription Order (as defined below) that references these Terms of Service (“Customer”) and to the Service (as defined below) included in such Order. These Terms of Service, together with all applicable exhibits, attachments, and addenda, is the complete agreement of Censys, Inc. (“Censys”) and Customer regarding Customer’s order and use of the Service under the Order. Censys may update these Terms of Service from time to time. These Terms of Service shall be effective on the earliest of (the “Effective Date”): (a) the date Customer clicks a button indicating its agreement with these Terms of Service; (b) the date Customer submits an Order incorporating these Terms of Service; and (c) Customer’s use of the Service. In the event of a conflict, these Terms of Service prevail over an exhibit, attachment, addendum, or Order. If an individual submits an Order on behalf of an entity or company, such individual hereby represents that he or she is authorized to submit the Order on behalf of such entity or company and to bind such entity or company to the Terms of Service set forth herein.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF CUSTOMER HAS ENTERED INTO A SEPARATE MASTER SERVICES AGREEMENT WITH CENSYS FOR THE SERVICE, THEN THE TERMS OF THAT SIGNED CENSYS MASTER SERVICES AGREEMENT ARE INCORPORATED HEREIN FOR ALL PURPOSES AND CONTROL.
1. DEFINITIONS
1.1 “Service” means the service(s) (including any Censys Property (as defined below) used to provide such service(s)) which are identified in the Order and hosted by or on behalf of Censys and provided to Customer under these Terms of Service, as such service(s) may be modified or enhanced from time to time by Censys in its sole discretion. “Service” includes the software-as-a-service (“SaaS”) provided by Censys to Customer in accordance with these Terms of Service, including provision of access to the SaaS and related Documentation (as defined below), as is necessary to provide the SaaS to Customer or to perform the functions set forth in the applicable Documentation. “Service” also includes any other software, equipment, on-boarding, configuration/integration, user identification, password change management, and technical support of Customer and connections maintained by Censys or its providers to allow Customer to access and use the SaaS in accordance with these Terms of Service. The Service is made available by means of the Internet or through other electronic means. The Service includes access to the Censys data set, if included in the Order.
1.2 “Censys Data” means the data and results provided or produced through the Service.
1.3 “Censys Property” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information acquired, created, developed or licensed by Censys and any improvement, modification, extension or other derivative works thereof and all intellectual property rights thereto, including without limitation, the Service, the Censys Data and Aggregated Data (as defined below).
1.4 “Documentation” means any documentation regarding the Service that is provided by Censys to Customer in electronic or other form, as may be updated by Censys at any time.
1.5 “Order” means an online order referencing these Terms of Service that has been (a) submitted by Customer through Censys’ website; and (b) any Terms of Service presented to Customer on a Censys web-based product, agreed to by Customer (as indicated by Customer’s clicking an “Accept” or similarly marked button or checkbox).
1.6 “Search Queries” means queries submitted through the Service by Customer.
2. SERVICE
2.1 Service License. Subject to payment of all fees due hereunder and under the Order and all terms of these Terms of Service, Censys grants Customer a nonexclusive, non-transferable license (without the right to sublicense) during the Service term specified in the Order to access and use the Service only for Customer’s internal, first-party use in connection with its ordinary business operations. Customer’s ability to use the Service will commence within two business days of Customer’s submission of the Order.
2.2 Customer Systems. Customer is responsible for providing all equipment, subscriptions, credentials, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, “Customer Systems”). Customer shall ensure that all Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
2.3 Service Access. Customer will identify a username and password (“Account Credentials”) that will be used to set up Customer’s account (“Account”). Customer is permitted only the authorized number of registered users for the Service as indicated on the Order (each, a “Registered User”). Customer may not share its Account Credentials or Registered User credentials with anyone, including but not limited to, employees of Customer who are not individually authorized as Registered Users. All Registered Users must be directly employed or subcontracted by Customer. To the extent that Censys authorizes any Customer login credentials not administered by Censys (“Authorized Credentials”) to access cloud databases containing Censys Data, Customer may not under any circumstances share such Authorized Credentials with any third party for the purpose of accessing Censys Data. The sharing of Account Credentials or Authorized Credentials to access the Service is strictly prohibited, unless explicitly authorized in writing by Censys. Customer agrees to take all necessary steps to protect the confidentiality of Account Credentials and Authorized Credentials and to ensure that appropriate procedures are in place to prevent misuse. Customer shall be responsible for the acts or omissions of any person who accesses the Service using Account Credentials, Authorized Credentials or any other access procedures provided to or created by Customer. Censys reserves the right to refuse registration of, or to cancel, login credentials that violate these Terms of Service. Customer agrees to notify Censys immediately upon learning of any unauthorized use of Customer’s Account, Account Credentials, Authorized Credentials or any other breach of security with respect to the Service or the Censys Data. From time to time, Censys’ personnel may log into the Service under Customer’s Account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
2.4 Service Availability. Censys will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtime resulting from maintenance, repairs and upgrades. Censys will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Censys will not be liable for any failures in the Service or any other problems which are related to: (a) the Customer Systems; or (b) outages to telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Censys’ facilities or control.
2.5 Service Support. Censys will provide Customer with email support for Customer’s use of the Service, as reasonably determined by Censys.
3. LICENSE RESTRICTIONS AND CUSTOMER OBLIGATIONS
3.1 Service License Restrictions. Customer shall use the Service solely for Customer’s own internal business operations and not offer the Service for resale or other consideration to any third party. Customer shall not, directly or indirectly: (a) use the Service or any Censys Property or Confidential Information (as defined below) to create any service, software, product or system; or (b) provide the Service or any Censys Property, in whole or in part, to any third party, including as a stand-alone product, service, application, file, report or database.
3.2 Additional Service License Restrictions. Customer shall not, directly or indirectly: (a) use or enable any third party to use any Censys Data, Censys Property, or Confidential Information, or any derivatives of any of the foregoing, as prompts or inputs, or otherwise to train any artificial intelligence, machine learning or language models or similar technology or systems; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service (except and only to the extent that these restrictions are expressly prohibited by applicable law); (c) encumber, sublicense, transfer, distribute, sell, rent, lease, loan, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, edit, alter, adapt, combine, create derivative works of or otherwise modify the Service or any Censys Property; (e) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to these Terms of Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (f) use the Service or any Censys Property in any manner that does not comply with all applicable laws, rules and regulations; (g) use the Service or any Censys Property for any malicious or deceptive purposes; (h) use the Service or any Censys Property in any manner that adversely impacts the stability of Censys’ servers or adversely impacts the behavior of other applications using the Service or interferes or attempts to interfere with the proper working of the Service or any activities conducted on the Service; (i) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Service, other than by using an authorized API, or permit third parties to obtain the Service from Customer’s website through unauthorized web crawling, data mining, spiders, bot technology or screen scraping; or (j) bypass any security or privacy settings or measures Censys may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service) or any Censys Property. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service. Customer agrees to immediately notify Censys of any actual or suspected unauthorized use or access of the Service and provide reasonable assistance to Censys in the investigation and prosecution of any such unauthorized use or disclosure.
3.3 No Implied License. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Censys (and its licensors) shall retain all right, title, and interest in and to the Service, the Censys Property, the Documentation and Censys’ logos. As between Censys and Customer, the Service, the Censys Property, the Documentation and the Censys brand features, including any and all intellectual property rights therein, are and shall at all times remain the sole and exclusive property of Censys and are protected by applicable intellectual property laws and treaties.
4. ORDERS, FEES, AND PAYMENTS
4.1 Order. The Order shall specify the Service to be provided, applicable fees, and the term during which the Service is to be provided. Censys shall only be responsible for providing the Service identified in the Order for the term specified in the Order.
4.2 Service Fees. In consideration for the Service, Customer shall pay fees specified in the Order.
4.3 Payment Terms. Following Customer’s submission of the Order, Censys will invoice Customer for the fees specified in the Order. Within two business days from the date of such invoice, Customer shall pay the fees set forth in the invoice via ACH or credit card. Where Customer chooses to pay via ACH, Customer hereby authorizes Censys (or Censys’ bank) to debit Customer’s account (on a recurring basis) for fees due and payable by Customer during the Initial Term (as defined below) and each Renewal Term (as defined below) and remit funds in accordance with Customer’s payment instructions through the ACH. Customer also authorizes Censys (or Censys’ bank) to resubmit any ACH debit that is returned for insufficient or uncollected funds, or any other reason. Where Customer chooses to pay via credit card, Customer hereby authorizes Censys to charge the credit card provided (on a recurring basis) for fees due and payable by Customer during the Initial Term and each Renewal Term. Customer acknowledges that its credit card information will be saved by Censys for future transactions on Customer’s account. All payments shall be made in US dollars and shall be nonrefundable. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of two percent (2%) per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Censys for all costs (including attorneys’ fees) incurred by Censys in collecting payments. In addition to its other rights and remedies, Censys may, at its option, suspend Customer’s access to the Service or terminate these Terms of Service and the Order in the event that Customer is not current in the payment of fees owed to Censys.
4.4 Taxes. All payments required by these Terms of Service and the Order shall include the payment of any federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Censys’ net income. All amounts payable by Customer for taxes imposed by any government related to any Customer payment to Censys hereunder shall be calculated and reflected on the invoice sent by Censys to Customer. Customer may provide Censys with a valid certificate of exemption from the requirement of paying sales, use or other purchase related taxes, if applicable.
5. CONFIDENTIALITY
5.1 Scope. “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for a party in relation to these Terms of Service, whether disclosed in tangible, written, oral or electronic form, that is of a nature that should reasonably be considered to be confidential and proprietary. Without limitation, the Service, the Censys Property, the Documentation and all pricing information are Censys’ Confidential Information. Confidential Information expressly excludes any information to the extent that the receiving party can demonstrate such information is (a) already known by it prior to receipt from the disclosing party without restriction; (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party; (c) generally available to the public without breach of these Terms of Service; or (d) independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information. Notwithstanding anything to the contrary herein, Censys Data is expressly acknowledged and agreed by the parties to constitute Censys’ Confidential Information for the purposes of these Terms of Service. For the avoidance of doubt, any elements of Censys Data that may be available to the public shall not diminish the confidentiality of Censys Data as provided to Customer.
5.2 Confidentiality. Except for the specific rights expressly granted by these Terms of Service, the receiving party shall not use, copy or disclose any of the disclosing party’s Confidential Information without the disclosing party’s prior written consent. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. The receiving party shall only disclose the disclosing party’s Confidential Information to the receiving party’s employees, contractors and agents (“Representatives”) who have a need to know such information for the purposes of these Terms of Service, are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. The receiving party shall be responsible for any breach of confidentiality by its Representatives. Promptly upon the disclosing party’s request at any time, the receiving party shall return all of the disclosing party’s tangible Confidential Information, permanently erase all of the disclosing party’s Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Notwithstanding the foregoing, either party may provide a copy of these Terms of Service or otherwise disclose its terms on a confidential basis in connection with any financing transaction or due diligence inquiry.
5.3 Compelled Disclosure. Nothing herein shall prevent a party from disclosing these Terms of Service or any of the other party’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided that, prior to any such disclosure, the receiving party shall: (a) promptly notify the disclosing party in writing of such requirement to disclose; and (b) cooperate with the disclosing party, at the disclosing party’s expense, in protecting against or minimizing any such disclosure or obtaining a protective order.
6. PROPRIETARY RIGHTS
6.1 Customer Systems. Customer shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Customer Systems.
6.2 Censys Data. Censys shall own all right, title, and interest (including all intellectual property and other proprietary rights) in and to the Censys Data. Censys hereby grants Customer a nonexclusive, royalty-free right and license to access, use, copy, process and store the Censys Data solely for use in Customer’s own internal business operations. Customer shall not redistribute or resell the Censys Data. Censys shall not have any obligation to store any Censys Data beyond the Service term under the Order or following termination of these Terms of Service. Except for the limited rights and licenses expressly granted hereunder, no other license is granted by Censys and no other use is permitted.
6.3 Service Feedback. Customer may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Service (“Feedback”). All Feedback provided to Censys is entirely voluntary, shall be solely owned by Censys (including all intellectual property rights therein and thereto) and shall constitute Censys’ Confidential Information. Customer shall and hereby makes all assignments necessary to achieve such ownership by Censys.
6.4 Censys Property. Censys (and/or its licensors) shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Service, the Censys Property and the Documentation.
6.5 General Learning; Aggregated Data. Customer agrees that Censys and its agents and affiliates are free to (a) collect, use, edit, host, store, reproduce, modify, distribute and create derivative works of Search Queries, provided that Censys will not publish Search Queries in a manner that, directly or indirectly, identifies Customer or any individual person (“De-identified Search Data”), (b) collect, use and create derivative works of data regarding Service usage and performance derived from the Service; (c) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and (d) use, copy, modify, edit, host, store, reproduce, create derivative works of, publish, distribute and disclose such Aggregated Data in a manner that does not, directly or indirectly, identify Customer or any individual person. Censys shall own all right, title and interest to the De-identified Search Data, Aggregated Data and any derivative works thereof. In addition, Censys shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Search Queries or otherwise acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another customer).
7. WARRANTIES AND DISCLAIMERS
7.1 Service. Censys represents and warrants to Customer that the Service will operate in all material respects in accordance with the Documentation. Any warranty claim under this Section 7.1 must be made in writing within 30 days after performance of the portion of the Service giving rise to the claim. Censys’ sole liability and Customer’s exclusive right and remedy for a breach of such warranty is for Censys to correct or re-perform the nonconforming Service.
7.2 Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS SECTION 7, TO THE FULLEST EXTENT PERMITTED BY LAW, CENSYS HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND THEIR SUPPLIERS) ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CENSYS MAKES NO WARRANTY THAT THE SERVICE OR ANY CENSYS DATA WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE. CENSYS MAKES NO REPRESENTATIONS, AND DISCLAIMS ANY AND ALL LIABILITY, WITH RESPECT TO THE PERFORMANCE OF CUSTOMER’S PRODUCTS, SERVICES AND ANY OTHER COMMERCIAL OFFERINGS OF CUSTOMER INTO WHICH THE CENSYS DATA MAY HAVE BEEN INCORPORATED.
8. INDEMNIFICATION
8.1 Censys Infringement Indemnity. Except as provided below, Censys agrees to: (a) defend Customer against any allegation demand, claim, action, proceeding or suit (each, a “Claim”) by a third party that Customer’s authorized use of the Service infringes any US patent or copyright or misappropriates any trade secret of such third party; and (b) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim; provided that (x) Customer promptly provides Censys with written notice of such Claim and reasonable cooperation, information, and assistance in connection therewith, and (y) Censys shall have sole control and authority to defend, settle or compromise such Claim (provided that Censys may not settle any Claim unless the settlement unconditionally releases Customer of all liability). If the Service becomes or, in Censys’ opinion, is likely to become, the subject of any injunction preventing its use as contemplated herein, Censys may, at its option: (1) obtain for Customer the right to continue using the Service; or (2) replace or modify the Service so that it becomes non-infringing, without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Censys, then it may terminate these Terms of Service and the Order upon written notice to Customer and refund to Customer any unused prepaid fees under such Order for the Service, prorated for the remainder of the term of the Order. Notwithstanding the foregoing, Censys shall have no liability or obligation to Customer hereunder with respect to any Claim or Loss to the extent based upon: (i) Search Queries; (ii) Censys Data; (iii) any unauthorized use of the Service; (iv) any modification or combination of the Service with data, software, hardware, or systems not provided by Censys; (v) any portion of the Service that implements Customer’s specific requirements; (vi) Customer’s continuing allegedly infringing activity after being notified to cease use as provided for herein; or (vii) Customer’s continuing use of any version of the Censys Property after being provided modifications that would have avoided the alleged infringement. The foregoing states the sole and exclusive liability of Censys, and Customer’s sole and exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service or any part thereof or by its use or operation.
8.2 Customer Indemnity. Customer agrees to: (a) defend Censys against any Claim by a third party that results from or arises out of (i) any breach by Customer of the restrictions in Section 3 of these Terms of Service, or (ii) any product, service or other commercial offering of Customer into which any Censys Data has been incorporated, or with respect to which Customer utilizes the Service; and (b) indemnify Censys for any Losses awarded by a court of competent jurisdiction or agreed to as part of a monetary settlement and arising out of such Claim; provided that (x) Censys promptly provides Customer with written notice of such Claim and reasonable cooperation, information, and assistance in connection therewith, and (y) Customer shall have sole control and authority to defend, settle or compromise such Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases Censys of all liability).
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY CONCERNING THE SUBJECT MATTER OF THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (A) LOSS OR INACCURACY OF OR DAMAGE TO DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL OF THE AMOUNTS PAID OR PAYABLE HEREUNDER BY CUSTOMER UNDER THE ORDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OR PROPRIETARY RIGHTS OR FOR COST OF DEFENSE OR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
10. TERM AND TERMINATION
10.1 Term of these Terms of Service. These Terms of Service shall commence on the Effective Date set forth in the Order and continue in effect thereafter until the expiration of the term of the Order.
10.2 Term of Order. Unless earlier terminated as set forth herein, the initial term of the Order shall be as set forth in the Order (the “Initial Term”). Thereafter, the Initial Term of the Order will be extended automatically for subsequent terms equal in length to the Initial Term (each subsequent term, a “Renewal Term”), unless either party gives the other party notice of non-renewal at least five days prior to the end of the Initial Term or then-current Renewal Term, as applicable. Customer’s notice of non-renewal, if applicable, shall be submitted via email to Censys at cancel@censys.com. Censys’ notice of non-renewal, if applicable, shall be provided to Customer via email. Censys reserves the right to increase the fees payable under the Order, to be determined by Censys in its sole discretion, upon 60 days’ email notice to Customer.
10.3 Termination of Order. These Terms of Service and the Order may be terminated by either party by delivering written notice of such termination to the other party: (a) if the other party materially breaches any material term of these Terms of Service or the Order and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party; or (b) if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.4 Effects of Termination. Upon any expiration or termination of these Terms of Service and the Order, all rights, obligations and licenses of the parties under these Terms of Service and the Order shall cease, except that accrued payment obligations, all confidentiality obligations, and any other provisions that are intended to survive the expiration or termination of these Terms of Service will survive.
11. GENERAL PROVISIONS
11.1 Entire Agreement. These Terms of Service, together with the Order, constitute the entire agreement regarding the subject matter hereof and thereof and supersede all prior negotiations, understandings or agreements (oral or written) between the parties regarding the subject matter hereof and thereof. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties after the date hereof, shall have no force or effect under these Terms of Service. No waiver, consent or modification of these Terms of Service shall bind either party unless in writing and signed by the party against whom enforcement is sought. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.”
11.2 Governing Law and Dispute Resolution. These Terms of Service shall be governed by and construed in accordance with the laws of the State of Michigan and the United States, without regard to conflicts of law provisions thereof. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms of Service. Any legal action or proceeding relating to these Terms of Service shall be brought exclusively in the state or federal courts located in Ann Arbor, Michigan, and each party consents to the jurisdiction thereof. In any action or proceeding to enforce or interpret these Terms of Service, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. In the event of a conflict between the laws of the United States and the laws of another country, the laws of the United States shall apply.
11.3 Compliance with Laws. Each party shall comply with all applicable laws and regulations in connection with the performance of its obligations and the exercise of its rights under these Terms of Service.
11.4 Remedies. Except as specifically provided otherwise, each right and remedy in these Terms of Service is in addition to any other right or remedy that may be available at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Sections 5 (Confidentiality) or 6 (Proprietary Rights) or the scope of any license granted hereunder, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
11.5 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Service (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
11.6 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or delivered by a recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Order, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
11.7 Assignment. Except as expressly provided herein, these Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent. Notwithstanding the foregoing, either party may assign these Terms of Service, without the other party’s consent, to any successor to all or substantially all of its business that concerns these Terms of Service (whether by sale of assets or equity, merger, consolidation or otherwise). Any assignment in violation of this Section 11.7 shall be deemed null and void ab initio. Censys may use contractors and other third-party service providers in performing the Service, provided that Censys shall be liable for the acts and omissions of its subcontractors to the same extent as for its own acts and omissions. These Terms of Service shall be binding upon and inure to the benefit of the successors, representatives and permitted assigns of the parties hereto.
11.8 Independent Contractors. The parties shall be independent contractors under these Terms of Service, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or as the joint venturer or partner of the other party, for any purpose.
