Effective Date of Terms of Service: October 1, 2018
BY REGISTERING FOR AN ACCOUNT OR USING THE SERVICE (AS DEFINED BELOW) IN ANY MANNER, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU” OR “CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS OF SERVICE (“TERMS OF SERVICE” OR “AGREEMENT”) WITH CENSYS, INC. (“Censys”). PLEASE READ THESE TERMS OF SERVICE, CENSYS’ PRIVACY POLICY AND CENSYS’ DMCA COPYRIGHT POLICY FULLY AND CAREFULLY BEFORE USING ANY SERVICES PROVIDED BY CENSYS (“SERVICE”).
IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, CUSTOMER AGREES THAT DISPUTES BETWEEN CUSTOMER AND CENSYS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND CUSTOMER WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. Definitions
- 1.1 “Censys Free Customers” means Customers who have registered for an Account authorizing them to use the Censys Free service.
- 1.2 “Censys Basic Customers” means Customers who have registered for an Account authorizing them to use the Censys Basic service.
- 1.3 “Censys Pro Customers” means Customers who have registered for an Account authorizing them to use the Censys Pro service.
- 1.4 “Censys Researcher Customers” means Customers who have registered for an Account authorizing them to use the Censys Researcher service.
- 1.5 “Non-paying Customers” means Censys Free Customers, Censys Researcher Customers and all unregistered Customers.
- 1.6 “Paid Services” means the Censys Basic service and the Censys Pro service (each, a “Paid Service”).
- 1.7 “Paying Customers” means Censys Basic Customers and Censys Pro Customers.
- 1.8 “Search Query” means a query submitted to the Service by Customer.
- 1.9 “Censys Data” means the data and results produced or provided through the Service.
- 1.10 “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 prior to or outside the scope of this Agreement 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.
2. Eligibility
No individual under age 13 may use the Service under any circumstances or for any reason. Censys may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. Customer is solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to Customer and the right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation. Further, the Service is offered only for Customer’s use, and not for the use or benefit of any third party.
3. Service
3.1 Service License. Subject to payment of all fees due hereunder as applicable and Customer’s compliance with these Terms of Service, Censys grants Customer a nonexclusive, nontransferable license (without right to sublicense) to access and use the Service with respect to which you have registered for an Account (i.e. Censys Free, Censys Researcher, Censys Basic Censys Pro), solely for the purpose of authorized use of the Service as described herein. Each Service with respect to which a Customer may register for an Account is subject to the terms presented upon such registration and any terms or limitations as further described on the Site. Paying Customers are authorized to use Censys Data for their own commercial purposes, subject at all times to the license restrictions herein. For the avoidance of doubt, Censys Free Customers, Censys Researcher Customers and all unregistered Customers are expressly prohibited from using the Service and Censys Data for commercial purposes of any kind, including internal business purposes. Under no circumstances may any Customer, including any Paying Customers, incorporate any Censys Data into its own software products or services that are distributed or otherwise made available to a third party. The foregoing shall not preclude any Customer from distributing or making available to third parties written (including electronic) reports or materials that include or are based on Censys Data. Any Customer seeking to incorporate any Censys Data into its own software, products or services to be distributed or otherwise made available to a third party must upgrade to a Censys Enterprise Account. Please refer to the FAQ page on the Site for further information on acceptable use of the Service available through your Account.
3.2 Attribution. Non-paying Customers must cite the Service and link to the Site wherever Censys Data is used (“Attribution”). Any Non-paying Customer who is unable or unwilling to provide Attribution in accordance with this Section but wishes to continue using the Service must purchase a Paid Service. To upgrade to a Paid Service Account, visit the Site.
3.3 Content License. Customer hereby grants Censys a non exclusive, perpetual, royalty-free license to use, reproduce, perform, display, modify, distribute and transmit any content submitted by Customer to the Service in connection with providing the Service.
3.4 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.
3.5 Service Access. Registering Customers will identify a username and password (“Account Credentials”) that will be used to set up Customer’s account (“Account”). Censys Free and Censys Basic customers are permitted only one individual registered user per Account. Non-Paying Customers are permitted only one Account. For the avoidance of doubt, the registration of more than one Censys Free Account or Censys Research Account by a Customer is strictly prohibited. The sharing by any Customer of Account Credentials for any type of Account to access the Service is strictly prohibited. Customer agrees to take all necessary steps to protect the confidentiality of Account Credentials and to ensure that appropriate procedures are in place to prevent misuse. Customer must provide accurate and complete information and keep the Account information updated. Customer shall be solely responsible for the acts or omissions of any person who accesses the Service using Account Credentials or access procedures provided to or created by Customer. Censys reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Customer agrees to notify Censys immediately upon learning of any unauthorized use of Customer’s Account or any other breach of security. From time to time, Censys personnel may log in to the Service under Customer’s Account in order to maintain or improve the Service, including in the case of Paying Customers, to provide assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
3.6 Third Party Services. The Service may link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Service. These other resources are not under Censys’ control, and Customer acknowledges that Censys is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply Censys’ endorsement or any association between Censys and their operators. Customer further acknowledges and agrees that Censys shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
3.7 Service Support. Censys will provide Paying Customers with technical support by email for Paying Customers’ use of the Service.
4. License Restrictions and Customer Obligations
4.1 Service License Restrictions. Customer shall not directly or indirectly: – (i) use the Service or any Censys Property or Confidential Information (as defined below) to create any service, software, product or system that is competitive with the Service or performs substantially the same functionality as the Service; – (ii) provide the Service or any Censys Property, in whole or in part, to any third party as a stand-alone product, service, application, file or database; – (iii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service unless you are expressly permitted to do so under an open source license or unless these restrictions are expressly prohibited by applicable statutory law; – (iv) encumber, sublicense, transfer, distribute, sell, rent, lease, loan, timeshare or otherwise commercially exploit (except with respect to Censys Data in the case of Paying Customers to the extent authorized by this Agreement), make available or use the Service or any Censys Property in any service bureau arrangement or otherwise for the benefit of any third party or in any way that violates any third party right; – (v) copy, edit, alter, adapt, combine, create derivative works of or otherwise modify the Service or any Censys Property except to the extent authorized by this Agreement; – (vi) 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; – (vii) use the Service or any Censys Property in any manner that does not comply with, all applicable laws, rules and regulations; – (viii) use the Service or any Censys Property for any malicious or deceptive purposes; – (ix) use the Service 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; – (x) 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 the Customer website through unauthorized web crawling, data mining, spiders, bot technology or screen scraping; or – (xi) 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 agrees to 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.
4.2 Censys Researchers. Censys Researchers may use the Service and the Censys Property as permitted herein provided that Censys Researchers may not redistribute Censys Data to a third party without Censys’ prior written consent. The foregoing shall not preclude Censys Researchers from including Censys Data in any written (including electronic) reports or publications.
4.3 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 and Censys’ logos. As between Censys and Customer, the Service, the Censys Property and the Censys’ brand features, and all intellectual property rights contained in any of the foregoing, are and shall at all times remain the sole and exclusive property of Censys and are protected by applicable intellectual property laws and treaties. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any Censys Property accessed through the Service.
5. Proprietary Rights
5.1 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 Paying Customers a nonexclusive, royalty-free right and license to access, use, copy, process and store the Censys Data solely for the purpose of authorized use of the Service as set forth in Section 3.1. Censys shall not have any obligation to store any Censys Data for any Customer. Except for the limited rights and licenses expressly granted hereunder, no other license is granted and no other use is permitted.
5.2 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 and shall be solely owned by Censys (including all intellectual property rights therein and thereto) and shall also be Censys’ Confidential Information. Customer shall and hereby does make all assignments necessary to achieve such ownership.
5.3 Censys Property. Censys (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service and the Censys Property. Censys does not guarantee that any Censys Property will be made available on the Site or through the Service. Censys reserves the right to, but does not have any obligation to remove, edit or modify any Censys Property in its sole discretion, at any time, without notice to Customer and for any reason or for no reason at all.
5.4 General Learning; Aggregate Data. Customer agrees that Censys and its agents and affiliates are free to
- (i) collect, use, edit, host, store, reproduce, modify, distribute and create derivative works of Search Queries, provided that Censys shall not publish Search Queries in a manner that directly or indirectly identifies Customer or any individual person (“De-identified Search Data”);
- (ii) collect, use and create derivative works of data regarding Service usage and performance derived from the Service;
- (iii) aggregate such data with other data to create compilations and analysis of such data (the “Aggregated Data”); and
- (iv) 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). If Customer does not want Search Query data provided to Censys to be disclosed in the manner set out in these Terms or in the Privacy Policy, Customer should not submit such content to Censys.
6. Paid Services, Fees, Payments, and Billing
6.1 Paid Services. In consideration for the applicable Paid Service, Paying Customers shall pay fees in the amounts and at the times specified by Censys upon setting up Paying Customers’ Accounts. Please note that any payment terms presented to Paying Customers in the process of using or signing up for Paid Services are deemed part of this Agreement.
6.2 Payment Terms. Payments shall be made in US dollars. Past due amounts which are not subject to a good faith dispute shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Paying Customers agree to reimburse Censys for all costs (including attorneys’ fees) incurred by Censys in collecting late payments. In addition to its other rights and remedies, Censys may, at its option, suspend Paying Customers’ access to the Service or terminate this Agreement in the event that a Paying Customer is not current in the payment of fees owed to Censys.
6.3 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs,levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Paying Customers agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Censys’ net income. All amounts payable by Paying Customers hereunder, including without limitation, all fees for the applicable Paid Service, shall be grossed-up for any withholding taxes imposed by any foreign government on Paying Customers’ payment of such amounts to Censys.
6.4 Billing. Censys uses a third-party payment processor (the “Payment Processor”) to bill Paying Customers through a payment account linked to the Paying Customer’s Account (“Billing Account”) for use of the applicable Paid Service. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Censys is not responsible for error by the Payment Processor. By choosing to use the applicable Paid Service, Paying Customers agree to pay Censys, through the Payment Processor, all charges at the prices then in effect for any use of the applicable Paid Service in accordance with the applicable payment terms and Paying Customers authorize Censys, through the Payment Processor, to charge the Paying Customer’s chosen payment provider (“Payment Method”). Paying Customers agree to make payment using that selected Payment Method. Censys reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
6.5 Payment Method. The terms of Paying Customers’ payment will be based on the chosen Payment Method and may be determined by agreements between the Paying Customer and the financial institution, credit card issuer or other provider of the chosen Payment Method. If Censys, through the Payment Processor, does not receive payment from a Paying Customer, such Paying Customer agrees to pay all amounts due on the Billing Account upon demand.
6.6 Recurring Billing. By choosing a recurring payment plan, Paying Customers acknowledge that the applicable Paid Service has an initial and recurring payment feature and Paying Customers accept responsibility for all recurring charges prior to cancellation. CENSYS MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM PAYING CUSTOMERS, UNTIL A PAYING CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY CENSYS) THAT SUCH PAYING CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE CENSYS REASONABLY COULD ACT. TO TERMINATE AUTHORIZATION OR CHANGE PAYMENT METHOD, GO TO YOUR ACCOUNT SETTINGS ON THE SITE.
6.7 Current Information Required. PAYING CUSTOMERS MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR THE BILLING ACCOUNT. PAYING CUSTOMERS MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP THE BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND PAYING CUSTOMERS MUST PROMPTLY NOTIFY CENSYS OR CENSYS’ PAYMENT PROCESSOR IF THE CHOSEN PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF A PAYING CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF THE PAYING CUSTOMER’S ACCOUNT CREDENTIALS. CHANGES TO SUCH INFORMATION CAN BE MADE UNDER CUSTOMER’S ACCOUNT SETTINGS ON THE SITE. IF A PAYING CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, SUCH CUSTOMER AGREES THAT Censys MAY CONTINUE CHARGING SUCH CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE BILLING ACCOUNT UNLESS SUCH CUSTOMER HAS TERMINATED THE APPLICABLE PAID SERVICE AS SET FORTH ABOVE.
6.8 Change in Amount Authorized. If the amount to be charged to the Billing Account varies from the amount preauthorized (other than due to the imposition of or change in the amount of state sales taxes), Paying Customers have the right to receive, and Censys shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Customers agrees to accept delivery of such notice via email at the email address provided during account registration. Any agreement a Paying Customer has with the Payment Processor will govern such Paying Customer’s use of the Payment Method. Paying Customers agree that Censys may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
6.9 Auto-Renewal for Paid Services. Unless a Paying Customer opts out of auto-renewal, the applicable Paid Service will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If a Paying Customer terminates the applicable Paid Service, such Customer may use its subscription until the end of its then- current subscription term; such Customer’s subscription will not be renewed after the then-current subscription term expires. However, such Customer won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
6.10 Reaffirmation of Authorization. Paying Customers’ non-termination or continued use of the applicable Paid Service reaffirms that Censys is authorized to charge the chosen Payment Method for the applicable Paid Service. Censys may submit those charges for payment and the Paying Customer will be responsible for such charges. This does not waive Censys’ right to seek payment directly from the Paying Customer. Paying Customers’ charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the applicable Paid Service.
7. Confidentiality
7.1 Scope. “Confidential Information” means all financial, business, operational, marketing or technical information disclosed by or for Censys 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, Censys Data, and Censys Property are Censys’ Confidential Information. 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.
7.2 Confidentiality. Except for the specific rights expressly granted by these Terms of Service, Customer shall not use, copy or disclose any Confidential Information without Censys’ prior written consent. Customer shall use the Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder. Customer shall only disclose Confidential Information to its employees, contractors and agents (“Representatives”) who have a need to know for the purposes of these Terms of Service and are bound by substantially similar confidentiality obligations and shall use reasonable care to safeguard the disclosing party’s Confidential Information. Customer shall be responsible for any breach of confidentiality by its Representatives, as applicable. 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 Confidential Information in electronic form and destroy all information, records, copies, summaries, analyses and materials developed therefrom.
7.3 Compelled Disclosure. Nothing herein shall prevent a party from disclosing these Terms of Service or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (i) promptly notify the disclosing party in writing of such requirement to disclose and (ii) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
8. Warranty Disclaimer
CENSYS HAS NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO CUSTOMER. CUSTOMER ACKNOWLEDGES THAT Censys HAS NO DUTY TO TAKE ANY ACTION REGARDING (I) WHICH USERS GAIN ACCESS TO THE SERVICE, (II) WHAT CENSYS DATA CUSTOMER ACCESSES VIA THE SERVICE, OR (III) HOW CUSTOMER MAY INTERPRET OR USE THE CENSYS DATA. CUSTOMER RELEASES CENSYS FROM ALL LIABILITY FOR CUSTOMER HAVING ACQUIRED OR NOT ACQUIRED CENSYS DATA THROUGH THE SERVICE. Censys MAKES NO REPRESENTATIONS CONCERNING ANYCENSYS DATA CONTAINED IN OR ACCESSED THROUGH THE SERVICE, AND CENSYS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CENSYS DATA CONTAINED IN OR ACCESSED THROUGH THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, Censys HEREBY DISCLAIMS (FOR ITSELF, ITS AFFILIATES AND ITS 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 CENSYS DATA MAY HAVE BEEN INCORPORATED.
9. Indemnification
Customer agrees to defend, indemnify and hold harmless Censys, its affiliates and each of its and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorney’s fees) that arise from or relate to (i) Customer’s misuse of, or access to, the Service, the Censys Data, (ii) any product, service or other commercial offering of Customer into which the Censys Data have been incorporated or with respect to which Customer utilizes the Service, or (iii) infringement by Customer, or any third party using Customer’s Account or identity in the Service, of any intellectual property or other right of any person or entity. Censys reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by customer, in which event customer will assist and cooperate with Censys in asserting any available defenses.
10. Limitation of Liability
IN NO EVENT SHALL CENSYS, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE, FOR ANY (I) LOSS OR INACCURACY OF OR DAMAGE TO DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (II) 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 (III) DAMAGES, IN THE AGGREGATE, IN EXCESS OF (IN THE AGGREGATE) THE GREATER OF (A) THE TOTAL OF THE AMOUNTS PAID TO Censys FOR PAID SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD OR (B) $100.00. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. Termination
Censys may terminate Customer’s access to all or any part of the Service or Censys Data at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with Customer’s Account. Customer may terminate an Account by following the instructions on the Site or through the Service. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of Customer’s content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Arbitration Agreement
12.1 Arbitration. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Censys and limits the manner in which you can seek relief from Censys. Both you and Censys acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms of Service, Censys’ officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
12.2 Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms of Service shall be finally settled by binding arbitration in Ann Arbor, Michigan. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
12.3 Costs of Arbitration. The JAMS rules will govern payment of all arbitration fees. Censys will pay all arbitration fees for claims less than $75,000. Censys will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
12.4 Small Claims Court. Furthermore, either you or Censys may assert claims, if they qualify, in small claims court in Ann Arbor, Michigan or any United States county where you live or work.
12.5 Waiver of Jury Trial. YOU AND CENSYS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Censys are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Censys over whether to vacate or enforce an arbitration award, YOU AND CENSYS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
12.6 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Censys is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 12.8 below.
12.7 Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Censys, Inc. 116 ½ S. Main St Ann Arbor, MI 48104 postmarked within 30 days of first accepting these Terms of Service. You must include (i) your name and residence address; (ii) the email address and/or telephone number associated with your account; and (iii) a clear statement that you want to opt out of this Terms of Service arbitration agreement.
12.8 Exclusive Venue. If you send the opt-out notice in Section 12.7 above, and/or in any circumstances where the foregoing arbitration agreement permits either you or Censys to litigate any dispute arising out of or relating to the subject matter of these Terms of Service in court, then the foregoing arbitration agreement will not apply to either party and both you and Censys agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in Ann Arbor, Michigan.
12.9 Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Censys.
13. General Provisions
13.1 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, without regard to its conflicts of law provisions, and the United States of America. 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.
13.2 Entire Agreement and Severability. These Terms of Service constitute the entire agreement, and supersedes any and all prior negotiations, understandings or agreements (oral or written), between Customer and Censys about the subject matter of these Terms of Service. Any inconsistent or additional terms on any related purchase order, confirmation or similar form shall have no force or effect under these Terms of Service. 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.”
13.3 No Waiver. No waiver, consent or modification of these Terms of Service shall bind Censys unless in writing and signed by the party against which enforcement is sought. The failure of Censys to enforce its rights under or any part of these Terms of Service at any time for any period will not be construed as a waiver of its rights to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that Censys will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, Censys must provide Customer with written notice of such waiver through one of its authorized representatives.
13.4 Remedies. Except as specifically provided otherwise, each right and remedy in these Terms of Service is in addition to any other right or remedy, which may be available at law or in equity. Customer agrees that, in the event of any breach or threatened breach of Section 5 (Proprietary Rights) or 7 (Confidentiality) or the scope of any license granted hereunder, Censys will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Censys 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.
13.5 Force Majeure. Censys shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including without limitation mechanical, electronic or communications failure or degradation.
13.6 Publicity. Censys may, for the sole purpose of identifying Customer in a representative listing of Censys’ customers, use Customer’s logo in its customer lists appearing in print and online. Censys will not identify Customer in any press releases or in any testimonial without obtaining Customer’s prior written approval.
13.7 Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; on the day sent (if during normal business hours of the recipient), if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to: legal@censys.io.
13.8 Assignment. These Terms of Service are personal to Customer, and are not assignable, transferable or sublicensable by Customer except with Censys’ prior written consent. Censys may assign, transfer or delegate any of its rights and obligations hereunder without consent.
13.9 Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
13.10 Modification. Censys reserves the right, in its sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending Customer notice through the Service, via e-mail or by another appropriate means of electronic communication. Censys may also impose limits on certain features and services or restrict Customer’s access to parts or all of the Service without notice or liability. While Censys will timely provide notice of modifications, it is also Customer’s responsibility to check these Terms of Service periodically for changes. Customer’s continued use of the Service following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to Customer’s continued use of the Service going forward. Customer’s use of the Service is subject to the Terms of Service in effect at the time of such use.
13.11 Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
