Terms of Use

Between (1) Deepengine AG (“Deepengine”); and

(2) You, or the Customer as identified in the Order (“Customer”)

Background:

A. Deepengine has developed certain vulnerability scanner software products which it makes available to customers on a SaaS basis, to enable the Customer to find cybersecurity weaknesses in their external-facing infrastructure.

B. The Customer willingly wishes to use Deepengine’s services for its internal business purposes.

C. Deepengine has agreed to provide, and the Customer has agreed to take and pay for, Deepengine’s services subject to the terms and conditions of this Agreement.

1. Definitions

1.1 In this Agreement, the following words will have the following meanings:

“Agreement” means these terms and conditions together with the Order, schedules, annexes, and all other documents referred to herein;

"Business Day" means any day which is not a Saturday, a Sunday, or a bank or public holiday in Switzerland;

"Confidential Information" means the provisions of this Agreement and in relation to either Party, all information, in any form or medium, which is secret or otherwise not publicly available (either in its entirety or in the precise configuration or assembly of its components), including commercial, financial, marketing or technical information, accounts, business plans, business methods, strategies and financial forecasts, tax records, correspondence, designs, drawings, manuals, specifications, customer or sales or supplier information, technical or commercial expertise, software, formulae, processes, methods, knowledge, know-how, and trade secrets, whether disclosed orally, in writing, or by electronic means, before or after the date of this Agreement;

"Customer User" means any employee, agent, contractor, and/or consultant of the Customer who uses the Services on behalf of the Customer;

“Effective Date” means the date that the Order is accepted by Deepengine;

“End Customers” means the end customers of the Customer on behalf of whom the Customer may use the Services.

“Fees” means the fees for the Services as specified in the relevant Plan;

"Force Majeure" means any event outside the reasonable control of either Party affecting that Party's ability to perform any of its obligations (other than payment) under this Agreement including act of God, fire, flood, lightning, illegality, compliance with any law or governmental order, rule, regulation or direction, war, revolution, act of terrorism, riot or civil commotion, strikes, lockouts, and industrial action, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services including telecommunications and internet services;

"Intellectual Property Rights” means any and all rights in and to any patent, copyright, database, design, trademark, service mark, domain name, know-how, utility model, business method, or process, whether such right is registered or not, or where relevant, any application for any such right, or other industrial or intellectual property right anywhere in the world;

"Deepengine Platform" means the online portal (as may be modified by Deepengine from time to time) through which the Customer and Customer Users can manage their Target Systems and view their security Weaknesses;

“Order” means the specific order for Services as accepted by Customer during the relevant sign-up process for Deepengine;

"Party" or "Parties" means Deepengine and/or the Customer as the context may require;

“Plan” means the relevant plan (Free, Advanced, Premium, or other plan) as made available by Deepengine, including concerning the specified number of Target Systems, and the relevant related Fees and Term as specified in the relevant Order.

“Platform” means the Deepengine software platform, including the Deepengine Portal, via which the Services are made available, including all versions, amendments, and improvements thereto and/or any other tools, methods, models, know-how, code, functionality, or other elements owned or developed by Deepengine;

“Platform Data” means all usage and/or statistical or other data, information, learnings or know-how related to and/or derived from the use of the Platform by customers and users, only in anonymized and aggregated form, and at all times not including any data or information that could individually identify a Customer.

“Services” means the services to be supplied by Deepengine under this Agreement, in accordance with the relevant Plan, as identified in the Order;

"Service Specification" means the specification of the Services set out at http://www.deepengine.io/pricing as updated and amended from time to time by Deepengine to reflect changes, enhancements, and improvements that it makes to the Deepengine systems and technology;

"Target" means an individual computer system as identified by the IP address, hostname, or other unique identifier assigned to it. Where the same computer system is monitored via multiple IP addresses, hostnames, or other identifiers, each separate entry in the Deepengine Portal will count as a unique system;

“Term” means the monthly or annual period set out in the relevant Plan or Order;

"Weakness" means a particular configuration, software patch level, or application code deployment which is perceived as likely to, or can be demonstrated to reduce or undermine the security of a Target System, or the information stored, processed, or transmitted by it;

"Year" means each period of 12 months from the commencement date.

1.2 Drafting Conventions

• (a) The headings in this Agreement are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.

• (b) Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership, or other legal entity.

• (c) The words "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.

• (d) All references in this Agreement to clauses are to the clauses in these Terms and Conditions unless otherwise stated.

2. The Service

2.1 Subject to acceptance of a relevant Order by Deepengine, and receipt of the Fees in accordance with the relevant payment terms, and subject to compliance by the Customer with the provisions of the relevant Plan and the terms of this Agreement, Deepengine agrees to provide the Customer with the Services.

2.2 The Customer may, subject to the relevant Plan details:

• (a) use the Services for the Customer's own internal business purposes concerning its own Targets;

• (b) use the Services to provide services to its own End Customers, by including its end customer’s systems in the Target Systems.

2.3 For the avoidance of doubt the Customer may not permit its End Customers to use the Services or access the Platform directly, and the Customer must at all times use the Services on behalf of its End Customers. The Customer is responsible for ensuring that only employees, agents, and consultants authorized and permitted by the Customer can access and use the Service. Only employees, agents, and consultants of the Customer are entitled to be Customer Users.

2.4 The Customer shall be responsible for all access to and use of the Service as enabled by the Customer via the Customer’s account and or Customer Users’ login credentials.

2.5 In connection with its supply of the Services, Deepengine may be required to process personal data on behalf of the Customer. In such circumstances, the parties will each comply with the terms and conditions of Schedule 1 – the Data Processing Agreement.

3. Customer Systems And Customer Responsibilities

3.1 The Customer shall perform or comply with the Customer responsibilities under this Agreement and agrees that Deepengine's provision of the Service is dependent on the Customer performing or complying with the Customer responsibilities.

3.2 The Customer permits Deepengine to access the Customer's systems and networks (including without limitation the Target Systems and any applications or data held on such network and systems) for the purposes of the Computer Misuse Act 1990 (as updated, replaced, and amended from time to time) and represents it has authority and will have authority at all times during this Agreement, to give such permission.

3.3 The Customer undertakes that it has and will have at all times during this Agreement, all necessary permissions, authorizations, and consents from the owners or licensors of the Customer's systems and networks (including without limitation the Target Systems) to enable the Services to be provided to the Customer.

3.4 The Customer undertakes that where it uses the Service in any jurisdiction or territory other than Switzerland, it shall be wholly responsible for ensuring that the use of the Service in that jurisdiction or territory complies with applicable laws or regulation.

3.5 The Customer shall not and shall not permit any third party to:

• (a) attempt to download, copy, modify, create derivative works from, frame, mirror, republish, or distribute any portion of the Platform except to the extent expressly set out in this Agreement; or

• (b) attempt to copy, adapt, decompile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;

• (c) use any knowledge or information acquired in relation to the Platform or Services in order to build a software product that competes with the Platform;

• (d) resell, sublicense, or otherwise use the Platform or Services to provide services to third parties, save as permitted under clause 2.2.

4. Security And Disclaimers

4.1 The Customer acknowledges that in order for Deepengine to provide the Services it will use penetration testing techniques on the Target Systems in accordance with the Service Specification to try and identify Weaknesses. The Customer acknowledges that use of the Service may cause certain temporary increases in network bandwidth usage and/or system processing load of the Target Systems.

4.2 The Customer undertakes to ensure that it has implemented all necessary security protocols and procedures to ensure that the testing carried out by Deepengine does not result in any loss of, or interruption to, the Customer's systems, networks, or data. The Customer further acknowledges that it shall be responsible for any backup and/or redundancy measures in relation to the Customer's systems, networks, or data.

4.3 While Deepengine undertakes to use reasonable skill and care in providing the Services, the Customer acknowledges that it is not possible to test for all known Weaknesses, and accordingly Deepengine does not warrant that the provision of the Services will result in the identification of all Weaknesses.

4.4 The Customer acknowledges that Deepengine cannot and does not warrant that the Services will be free from any vulnerability or other Weakness.

4.5 The Services may enable or assist the Customer to access the websites or other services of third parties. Deepengine makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, or any contract entered into by the Customer, with any such third party. Any contract entered into, and any transaction completed via any third-party website, is between the Customer and the relevant third party, and not Deepengine. Deepengine recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Deepengine does not endorse or approve any third-party website or services nor the content of any of the third-party website made available via the Services.

5. Proprietary Rights

5.1 All Intellectual Property Rights in the Platform and the Services, including any related content, will remain the property of Deepengine or its licensors, as applicable.

5.2 The Customer shall not do anything to challenge or impair the Intellectual Property Rights of Deepengine, or its licensors in relation to the Platform, and acknowledges that except as expressly provided in this Agreement, it shall not have any rights in or to the Platform or the Services.

5.3 In relation to the Platform Data, the Customer grants Deepengine a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the Platform Data for the purposes of:

• (a) providing the Services to the Customer;

• (b) analyzing, benchmarking, and sharing aggregated and anonymized information with third parties about the use of the Platform;

• (c) developing and improving Deepengine’s products and services, including without limitation the Platform and the Services.

• 5.4 Subject to the Customer complying with its obligations under this Agreement and paying the Fees, Deepengine grants to the Customer a limited, non-exclusive, non-transferable, revocable license to use the Platform for the Term of this Agreement, in accordance with the terms of this Agreement, and for the sole purposes of using the Services in accordance with this Agreement.

6. Fees And Payment

6.1 The Customer shall pay the Fees to Deepengine in accordance with the relevant Plan or Order, and payment shall be made in the currency specified in the Plan or Order.

6.2 Fees shall be paid in full without any deduction or set-off and shall be due within 30 days of the date of the invoice unless otherwise specified in the Plan or Order.

6.3 All Fees payable under this Agreement shall be exclusive of VAT, or other applicable sales tax, which shall be added to the Fees at the prevailing rate where applicable.

6.4 Deepengine shall have the right to vary the Fees payable by the Customer, on not less than 30 days' notice to the Customer, provided that any such variation will not take effect until the end of the current Term.

6.5 If the Customer fails to make any payment by the due date then Deepengine shall be entitled, without limiting any other rights or remedies it may have, to charge interest on the outstanding amount at the rate of 4% per annum above the base rate of the Swiss National Bank, from the due date until the date of actual payment, whether before or after judgment.

7. Confidentiality

7.1 Each Party may be given access to Confidential Information from the other Party to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that:

• (a) is or becomes publicly known through no act or omission of the receiving Party; or

• (b) was in the other Party's lawful possession before the disclosure; or

• (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or

• (d) is independently developed by the receiving Party, which independent development can be shown by written evidence.

7.2 Each Party shall hold the other's Confidential Information in confidence and shall not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

7.3 Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

7.4 Neither Party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any third party.

7.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Deepengine's Confidential Information.

7.6 Deepengine acknowledges that the Customer Data is the Confidential Information of the Customer.

7.7 This clause 7 shall survive termination of this Agreement, however arising.

8. Limitation Of Liability

8.1 This clause 8 sets out the entire financial liability of Deepengine (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of:

• (a) any breach of this Agreement;

• (b) any use made by the Customer of the Services or any part of them; and

• (c) any representation, statement, or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2 Nothing in this Agreement shall limit or exclude the liability of Deepengine for:

• (a) death or personal injury resulting from negligence; or

• (b) fraud or fraudulent misrepresentation; or

• (c) any other liability that cannot be excluded or limited by law.

8.3 Subject to clause 8.2, Deepengine shall not be liable for:

• (a) loss of profits; or

• (b) loss of business; or

• (c) depletion of goodwill and/or similar losses; or

• (d) loss of anticipated savings; or

• (e) loss of goods; or

• (f) loss of use; or

• (g) loss or corruption of data or information; or

• (h) any special, indirect, consequential, or pure economic loss, costs, damages, charges, or expenses.

8.4 Subject to clause 8.2, Deepengine's total aggregate liability in contract, tort (including negligence), or otherwise, arising in connection with this Agreement shall be limited to the total Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose.

9. Term And Termination

9.1 This Agreement shall, unless otherwise terminated as provided in this clause 9, commence on the Effective Date and shall continue for the Term.

9.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

• (a) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment; or

• (b) the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so; or

• (c) the other Party takes any step or action in connection with its entering into administration, provisional liquidation, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, or ceasing to carry on business.

9.3 Without affecting any other right or remedy available to it, Deepengine may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to comply with the terms of the Plan or this Agreement.

9.4 On termination of this Agreement for any reason:

• (a) all licenses granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Platform; and

• (b) Deepengine may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 9.5, unless Deepengine receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Deepengine shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees outstanding at and resulting from termination (whether or not due at the date of termination).

9.5 On termination of this Agreement, each Party shall return and make no further use of any equipment, property, documentation, and other items (and all copies of them) belonging to the other Party.

9.6 Any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination.

9.7 Clauses which expressly or by implication survive termination of this Agreement shall continue in full force and effect.

10. General

10.1 Force Majeure. Deepengine shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs, or other industrial disputes (whether involving the workforce of Deepengine or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

10.2 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).

10.3 Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

10.4 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

10.5 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

10.6 Assignment. The Customer shall not, without the prior written consent of Deepengine, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement. Deepengine may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.

10.7 No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as an agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability, and the exercise of any right or power).

10.8 Third Party Rights. This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

10.9 Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or email to the other Party at its address set out in this Agreement, or such other address as may have been notified by that Party for such purposes, and shall be deemed to have been received:

• (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

• (b) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; and

• (c) if sent by email, at 9.00 am on the next Business Day after transmission.

10.10 Governing Law. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

10.11 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).