Terms of Service

By entering into an order form (“Order Form”) with BreachBits, Inc. (“BreachBits”, “we”, “us,” or “our”), you (“Customer”, “you,” or “your”) (you and us collectively the “parties” and each a “party”) agree to be bound by these Terms and Conditions (“Agreement”). Each Order Form will incorporate the terms and conditions of this Agreement and will be a separate contract between you and BreachBits.

​

For purposes of this Agreement, the term “Affiliate” means any entity or person that is directly or indirectly controlling, controlled by or under common control with a party hereto. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

​

For enterprise Users, the terms and conditions in this Agreement apply to you unless you have a separate agreement with us.

​

1. SERVICES

1.1. Services. During the Term, and subject to the terms and conditions of this Agreement and Customer’s payment of all Fees, BreachBits shall use commercially reasonable efforts to provide scores, reports, and services, including those services provided through the use of the BreachBits AutoIntelligent Persistent Threat (AiPT) Engine, as more fully set out in the applicable Order Form (“Services”). Services do not include the Dashboard (see Section 1.3). As part of the registration process for the Services, Customer will identify authorized users (“Users”). BreachBits reserves the right to enforce security standards for Users it deems inappropriate. If applicable, Customer will also identify any third-party entities Customer authorizes BreachBits to contact and provide Services for or about (“Partners”).

​

1.2. Support Services. During the Term, and subject to the terms and conditions of this Agreement and Customer’s payment of all Fees, BreachBits shall use commercially reasonable efforts to provide Customer with reasonable technical support services (“Support Services”) in accordance with the Order Form and BreachBits’s standard practice.

​

1.3. Dashboard. For the Customer’s convenience, BreachBits will endeavor to provide Customer with a web accessible view of information data related to the Services (“Dashboard”). However, BreachBits makes no promise regarding the functionality, capabilities, or availability of the Dashboard or that the Dashboard will be free from errors or omissions, and we disclaim any and all warranties and representations relating to the Dashboard.

​

2. TERM AND TERMINATION.

2.1. Term. This Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each, a “Renewal Term”) (the Initial Service Term and all Renewal Terms, collectively, the “Term”), unless either party gives a non-renewal notice at least thirty (30) days prior to the end of the then-current term.

​

2.2. Termination. Any Order Form and this Agreement may be terminated as follows: (a) by either party upon failure by the other party to perform any material obligation related to this Agreement or applicable Order Form that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party, (b) by either party if a petition of bankruptcy of the other party is filed and not dismissed within thirty (30) days, and/or (c) by BreachBits, (i) upon fourteen (14) days written notice if payments are in arrears, and/or (ii) upon Customer’s failure to comply with applicable standards, rules, and regulations.

​

3. PAYMENT OF FEES.

3.1. Fees. Customer will pay BreachBits the then-applicable monthly subscription fees and all other fees described in the Order Form and this Agreement (including taxes) (the “Fees”) for the Services in accordance with the terms therein and this Agreement. Payment is due immediately and, whether BreachBits issues an invoice or not, you must pay and BreachBits must receive full payment of the Fees within thirty (30) days from when due. Customer may choose to pay the Fees through the use of third-party payment service or as otherwise agreed to by the parties. If Customer’s use of the Services exceeds the service capacity as set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. BreachBits reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that BreachBits has billed Customer incorrectly, Customer must contact BreachBits no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to BreachBits’s customer support department.

​

3.2. Late Payment. In the event payment of Fees is past due, in addition to any other remedies available to BreachBits at law or in equity, BreachBits may suspend or terminate Customer’s use of and access to the Services. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses and legal fees of collection.

​

3.3. Taxes. The Fees shall include and Customer shall pay any sales, use, excise, value-added, gross receipts, services, labor related, consumption, and other similar taxes or surcharges, however designated, that are levied by any taxing authority in connection with the provision or use of Services under this Agreement or any Order Form. If at any time during the Term, BreachBits believes that it is required by law to collect any new or additional taxes for which Customer would be responsible for paying, BreachBits shall notify Customer of such taxes, collect such taxes directly from Customer and remit such taxes to the appropriate governmental authority. If any taxing authority determines at any time BreachBits has incorrectly determined any tax liability regarding taxes for which Customer is responsible pursuant to this Agreement or any Order Form, BreachBits shall have the right to invoice Customer for such taxes determined by such taxing authority to be due and owing.

​

4. INTELLECTUAL PROPERTY.

4.1. BreachBits’s Intellectual Property.

4.1.1. BreachBits shall retain all right, title and interest in and to the Services and Software (as defined in Section 5.2), including but not limited to all of BreachBits’s technology, ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, processes, internally developed software, platform, applications, improvements, enhancements or modifications, and any patent, copyright, trademark, trade secret or other intellectual property rights related to the Services provided herein (“BreachBits Intellectual Property”). Neither this Agreement or Order Form, nor any action, omission or statement by BreachBits, nor Customer’s use of BreachBits Intellectual Property, conveys any ownership rights in the BreachBits Intellectual Property or to any element or portion thereof.

4.1.2. To the extent that Customer creates any work that is based upon BreachBits Intellectual Property provided to Customer, such as an enhancement, modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form that BreachBits Intellectual Property may be recast, transformed or adapted (collectively “Derivative Works”), Customer acknowledges and agrees that such Derivative Works are owned exclusively by BreachBits and that any rights that Customer may have in such Derivative Works are hereby irrevocably assigned to BreachBits. Derivative Works shall be a part of BreachBits Intellectual Property.

​

4.2. Customer’s Intellectual Property. Customer shall retain all right, title and interest in Customer Data. Customer hereby grants to BreachBits a royalty-free, fully-paid, non-exclusive, worldwide, sub-licensable, and transferrable license to use Customer Data to provide the Services to Customer and as otherwise contemplated in this Agreement and applicable Order Form.

​

4.3. Analytical Data, Scores, and Reports. Customer acknowledges and agrees that BreachBits may collect, use, and disclose (i) quantitative data derived from the use of BreachBits’s Services and Software and aggregated and anonymized Customer Data, (collectively, the “Analytical Data”) and (ii) any score or report produced in connection with the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes in support of the provision of BreachBits’s Services and Software. Customer acknowledges and agrees that Analytical Data, scores, and reports are owned exclusively by BreachBits and that any rights that Customer may have in such are hereby irrevocably assigned to BreachBits. Upon disclosure to Customer, BreachBits grants a limited license to Customer to use the Analytical Data, reports, and scores for its sole use and as otherwise agreed to by the parties.

​

4.4. Feedback. If Customer provides suggestions, proposals, ideas, recommendations, or other feedback (“Feedback”) regarding improvements to the BreachBits’s Services or Software, Customer acknowledges and agrees that Feedback are owned exclusively by BreachBits and that any rights that Customer may have in such Feedback are hereby irrevocably assigned to BreachBits.

​

5. REPRESENTATIONS AND WARRANTIES.

5.1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable Order Form; (b) the execution, delivery and performance of this Agreement and the applicable Order Form have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement and the applicable Order Form; and (d) the signatory to this Agreement and the applicable Order Form possesses all necessary authority to enter into the Agreement and applicable Order Form.

​

5.2. Customer Representation and Warranties. Customer represents, covenants and warrants that:

5.2.1. Customer and its Users will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by BreachBits or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels;

5.2.2. Customer and its Users will use the Services only in compliance with BreachBits’s standard published policies then in effect, including those made available on breachbits.com or otherwise provided to you, (the “Policy”) and all applicable laws and regulations;

5.2.3. Customer shall notify BreachBits within a reasonable time of any suspected error related to the Services, including, for example, errors in technical information related to Customer, Affiliate, Partner, or other third party in Analytical Data, reports, or scores, and any such notification will also be governed by the terms of any applicable Policy related to notice, disclosure, or correction; and

5.2.4. Customer and its Users consent and authorize and will obtain all necessary and appropriate consents and authorizations in accordance with all applicable laws to enable, BreachBits to provide Services and act as otherwise contemplated in this Agreement and applicable Order Form, including but not limited to the consents and authorizations necessary for BreachBits to use or access any domain, data, Customer Data, devices, system, computers, servers, or infrastructures and facilities, including those maintained or controlled by Affiliates, Partners, other third parties, and third-party service providers (collectively, “Facilities”).

 

5.3. Customer shall reasonably cooperate regarding and, upon request, provide reasonable proof of compliance with the provisions set forth in this section and BreachBits shall have no obligation to provide Services where BreachBits reasonably believes that Customer has not so complied or cooperated. We are not liable or responsible for any harm, delay, or failure resulting from Customer’s failure to cooperate or provide proof of compliance.

​

6. Purchases Through Resellers.

Customer may purchase through resellers authorized by BreachBits, and all such purchases shall be governed by this Agreement.

​

7. CONFIDENTIALITY.

7.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of BreachBits includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to BreachBits to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) is required to be disclosed by law.

 

7.2. Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (a) was already in the lawful possession of the Receiving Party prior to receipt thereof, directly or indirectly, from the Discloser; (b) lawfully becomes available to Receiving Party on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (c) is generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its representative(s); or (d) is subsequently and independently developed by employees, consultants or agents of the Receiving Party without reference to the Confidential Information disclosed hereunder. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

​

8. INDEMNIFICATION.

8.1. Customer Indemnification. Customer shall indemnify, defend and hold BreachBits, its Affiliates and their officers, directors, employees and agents harmless from and against any and all third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) a breach by Customer of any term of this Agreement or an Order Form; (b) the Customer Data and any other material offered by Customer; (c) any use of Analytical Data, scores, and reports as directed by Customer; (d) the failure for Customer to obtain appropriate authorizations for BreachBits’s access to any Facilities; (e) a claim relating to any defect in any product or service offered by Customer, its Affiliates or any of their agents or customers; (f) Customer’s breach of any laws or regulations; and (g) an alleged violation of the foregoing or otherwise from Customer’s use of Services.

​

9. LIMITED WARRANTY AND LIMITATION OF LIABILITY.

9.1. BreachBits shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner to minimize errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by BreachBits or by third-party providers, or because of other causes beyond BreachBits’s reasonable control, and BreachBits shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

​

9.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, BREACHBITS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND BREACHBITS DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BREACHBITS DOES NOT MAKE ANY EXPRESSED OR IMPLIED WARRANT REGARDING THE ACCURACY, COMPLETENESS, OR RELIABILITY OF CUSTOMER DATA OR ANY OTHER MATERIAL PROVIDED BY CUSTOMER AND ANY REPORT OR DERIVATIVE WORKS RELATED THEREOF.

​

9.3. Customer acknowledges and agrees that BreachBits’s Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). BREACHBITS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY FOR HIGH RISK ACTIVITIES.

 

9.4. NO CAUSE OR ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED UNDER THIS AGREEMENT BY EITHER PARTY.

 

9.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BREACHBITS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND BREACHBITS’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO BREACHBITS FOR THE SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BREACHBITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

​

10. Service Level.

10.1. Service Availability. As set forth in the applicable Statement of Work, BreachBits shall make the Services available as commercially reasonable, measured monthly, excluding holidays, weekends and scheduled maintenance. Any downtime resulting from outages of third-party connections or utilities, a Force Majeure Event, or other reasons beyond BreachBits’s control will be excluded from any such calculation. Customer's sole and exclusive remedy, and BreachBits’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one day, BreachBits will credit Customer ten percent (10%) of Service fees for each day of consecutive downtime; provided that no more than one such credit will accrue per week. Downtime shall begin to accrue as soon as Customer (with notice to BreachBits) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify BreachBits in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in anyone (1) calendar month in any event. BreachBits will only apply a credit to the month in which the incident occurred. BreachBits’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of BreachBits to provide adequate service levels under this Agreement.

​

10.2. Service Security. BreachBits will use commercially reasonable efforts to make Services safe and confidential. Only accounts authorized by the Customer will be given access to the technical data generated by and the reports provided in association with the Services; however, BreachBits may share or otherwise disclose any score generated by the Services or otherwise generated by BreachBits, for any purpose. BreachBits will never use Services to destroy, manipulate, or exfiltrate Customer data and will not disrupt Customer services, except as set forth in an Order Form, for phishing or internal testing services, or as otherwise explicitly requested in writing by the Customer. Any breach of data or report confidentiality, or destruction, manipulation, or exfiltration of Customer Data, or disruption of Customer’s services is considered an “Incident.” Customer's sole and exclusive remedy, and BreachBits’s entire liability, in connection with an Incident shall be that for each instance the BreachBits will credit Customer 100% of Service fees for the month in which the Incident occurred. In order to receive this credit, Customer must notify BreachBits in writing within ninety-six (96) hours from the time of suspected occurrence, and failure to provide such notice will forfeit the right to receive this credit. Alternately, Customer may receive this credit if BreachBits detects such an incident within six (6) months of the incident. BreachBits will notify the Customer within twenty-four (24) hours of a suspected Incident and within twenty-four (24) hours after confirmation of a suspected incident. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) month of Service Fees in anyone (1) calendar month in any event. BreachBits will only apply a credit to the month in which the Incident occurred. Exfiltration and non-destructive manipulation of Customer data necessary for the operation of the Service (e.g. exfiltration of potential targets, exfiltration of data that might generate exploitation options, exfiltration of data that may be necessary to prove that certain actions were taken, or manipulation of empty or volatile memory sections), shall not be deemed to be an Incident under this Agreement.

​

10.3. Privacy/Security Laws. The Parties recognize and agree that: (1) BreachBits does not provide data storage or processing; (2) BreachBits is not expected to collect, store, otherwise process, or have directly disclosed to it personally identifiable information; (3) any Customer Data access BreachBits may have through the Services would be incidental and meant to be temporary and would not be intended for data processing; and (4) as to Customer Data, BreachBits is not and will not be a “data processor” pursuant to the laws of the United Kingdom or the European Union’s General Data Protection Regulation (“GDPR”) or a “third party” or “service provider” to Customer pursuant to the California Consumer Privacy Act (“CCPA”) law, and BreachBits has and will have no comparable role or status pursuant to other laws governing personal information (collectively with GDPR and CCPA, “Privacy/Security Laws”).

​

If Customer itself is subject to any Privacy/Security Laws, Customer shall notify BreachBits and provide BreachBits with a copy of all employee policies relating to collection and use of employee data and any other related Customer data privacy and security policies (“Customer Data Policies”). Pursuant to Section 5.2, Customer shall include in the Customer Data Policies, or otherwise notify its Affiliates and Facilities about, any and all necessary descriptions of the Services as required by the applicable Privacy/Security Laws and shall take any other steps required by law to permit BreachBits to perform the Services. BreachBits will make commercially reasonable efforts to comply with any Customer Data Policies received and acknowledged by BreachBits. If BreachBits receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Data, BreachBits is not required to respond on Customer’s behalf or on BreachBits’s own behalf, but we may do so. BreachBits shall comply with any similar request related to Customer Data from Customer, on reasonable notice.

​

Nothing in this Agreement precludes BreachBits from asserting rights or defenses it may have under applicable law related to such requests or any Privacy/Security Laws. Customer recognizes and agrees that BreachBits may charge additional fees (without limitation) (i) for activities (if any) required of BreachBits by Privacy/Security Laws related to Customer Data and (ii) for activities Customer requests and BreachBits agrees to perform to help Customer comply with Privacy/Security Laws.

​

10.4. Support. BreachBits will provide Technical Support to Customer via electronic mail on weekdays during the hours of 9:00 am through 4:00 pm Eastern time, with the exclusion of federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by submitting a trouble ticket via the online help desk or emailing support@breachbits.com. BreachBits will use commercially reasonable efforts to respond to all Helpdesk tickets within five (5) business days.

​

11. MISCELLANEOUS.

11.1. Audit. Customer and each User shall, upon reasonable written notice and during normal business hours, provide access to and allow BreachBits to inspect and audit the relevant portions of Customer’s computers and systems on which any BreachBits’s Intellectual Property resides together with any other books and records related to the BreachBits’s Intellectual Property (including without limitation, books and records relating to the identity of Permitted Users) in order to confirm Licensee’s and each Permitted User’s compliance with the terms of this Agreement. Promptly following BreachBits’s request therefor, Customer shall provide to BreachBits, copies of all books and records reasonably requested by BreachBits for the purpose of confirming compliance with the terms of this Agreement. In the event that any such audit or review by BreachBits or its agent discloses an underpayment, such underpayment shall be promptly paid and, if the amount of such underpayment is greater than five percent (5%) of the amount that was due, Customer shall be responsible for paying the cost of such audit or review.

​

11.2. Export Compliance. Customer and Users may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR Section 2.101, the Software and documentation are “commercial items” and according to DFAR Section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

​

11.3. Publicity. Except as otherwise set forth in this Agreement or Order Form, neither party shall cause or permit to be released any publicity, advertisement, news release, or public announcement regarding any aspect of this Agreement or the relationship between the parties without the other party’s prior written consent. Notwithstanding the foregoing, BreachBits may include Customer’s name in a customer list that it provides to individual existing or prospective customers for marketing purposes. Customer shall not use BreachBits’s name, trade name, service marks, trademarks, trade dress or logo without BreachBits’s prior written consent.

​

11.4. Entire Agreement. This Agreement, in conjunction with the applicable Order Forms and other policies and documents referenced herein constitute the entire agreement between the parties with respect to the subject matter of this Agreement and the applicable Order Forms and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral.

​

11.5. Governing Law. This Agreement and Order Forms shall be governed under the laws of Maryland without regard for its choice of law principles. Customer agrees that any legal action involving this Agreement or Order Forms in any way will be instituted in a court of competent jurisdiction located in Maryland, and Customer consents to jurisdiction of the state or federal courts in Maryland over Customer's person for purpose of such legal action.

​

11.6. Assignment. This Agreement and Order Forms may not be assigned or transferred by a party thereto without the prior written consent of the other party thereto, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, BreachBits may freely assign this Agreement and Order Forms to an Affiliate or to an acquirer of all or part of BreachBits’s business or assets, whether by merger or acquisition.

​

11.7. Severability. If any provision of this Agreement or the applicable Order Form is held invalid or unenforceable at law, such provision shall be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable and the remainder of this Agreement and the applicable Order Form will continue in effect and be valid and enforceable to the fullest extent.

​

11.8. Amendment. We may revise this Agreement by posting a new version at breachbits.com/sla and providing written notice to Customer. However, during the then-current Term, Customer may reject any such revision that, on balance, materially reduces Customer’s rights, provided Customer provides written notice of such rejection, disclosing the material reduction in detail, within 30 days of Provider’s notice of the revision. Otherwise, each amendment, change, waiver, or discharge shall only be valid if made in writing by authorized representatives of all applicable parties.

​

11.9. Notice. Any notice to be provided shall be in writing and shall be deemed given: (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in the United States mail, postage prepaid, certified mail return receipt requested, or (c) if by next day delivery service, upon such delivery, or (d) if by electronic mail transmission, upon receipt of such transmission, to the addresses set forth in the Order Form as either party may designate from time to time by written notice to the other party hereto.

​

11.10. Remedies. Customer acknowledges that BreachBits may not have an adequate remedy in the event that it breaches the provisions of this Agreement and BreachBits may suffer irreparable damage and injury in such event. Customer agrees that BreachBits, in addition to seeking any other available rights and remedies as may apply, may seek an injunction restraining Customer from committing or continuing such violation.

​

11.11. Relationship of Parties. The Agreement and Order Forms are not a joint venture or partnership, and each party is entering the relationship as a principal and not as an agent of the other. The parties hereto agree that BreachBits is an independent contractor in performing the Services.

​

11.12. Force Majeure. Except for Customer’s payment obligation under this Agreement and any applicable Order Form, neither party will be responsible for any delay or failure in performance resulting from acts beyond such party’s reasonable control (each a “Force Majeure Event”). Force Majeure Events include, but is not limited to, acts of God, government or war, riots or strikes, disasters, fires, floods, epidemics, pandemics or outbreaks of communicable disease, cyberattacks, and internet or other system or network outages.

​

11.13. Survival. All provisions of this Agreement or any Order Form which by their nature should survive termination shall survive termination.

​

11.14. Waiver. No course of dealing or failure of a party to enforce strictly any term or provision or to exercise any right, obligation, or option provided, will waive such term, provision, right, obligation or option.

​

11.15. Heading. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.