Effective Date: February 25, 2020
These Terms of Service (these “Terms”) constitute a binding contract between you (“you”, “your” or “User”) and Enigma Technologies, Inc. (“Enigma”, “we”, “us” or “our”) and govern the terms and conditions with respect to use of Enigma Services (as defined in Section 1.1). Please carefully read these Terms as well as all linked documents and policies. We have included annotations throughout that are not part of the Terms itself but are intended to emphasize key sections and help you understand the text. If you do not understand any part of the Terms, please do not use Enigma Services.
By accepting these Terms or accessing or using Enigma Services, whether as a guest or a registered User, you agree to be bound by these Terms and to use Enigma Services in compliance with these Terms. If you are accessing or using Enigma Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Enigma that you have the authority to bind that organization to the Terms (and, in which case, the terms “you”, “your” or “User” will refer to that organization). If you have a separate written agreement with Enigma, then these Terms will not apply to you except as otherwise specified in such written agreement.
Certain sections of these Terms will only be applicable to Users who pay for Enigma Services (“Paying Users”). We will clearly specify what these sections are by referring to “Paying User(s)” in the relevant sections.
These Terms are effective February 25, 2020 (the “Effective Date”) for all Users agreeing to these Terms for the first time. If you have previously agreed to a version of the Terms before the Effective Date, then we have provided notice to you prior to the Effective Date that we will be updating these Terms. Please be aware that continuing to use Enigma Services on and after the Effective Date means that you agree to the updates to the Terms.
These Terms contain an arbitration provision and class action waiver (Section 12) and a limit on our liability (Section 7.2) in the event of a dispute between you and us. Please review these sections closely as they limit the manner in which you can seek relief from Enigma.
1. ENIGMA SERVICES
This section provides a general description of the services that Enigma may provide to you. Our services may contain code from outside of Enigma, including open source software, and data from third parties. In addition to these Terms, you are responsible for reviewing and complying with any separate terms and conditions applicable to any such code or data.
1.1 Provision of Enigma Services
As used throughout these Terms, “Enigma Services” refers to one or more hosted, API-based, or related services permitting you to access and receive Enigma’s data and intelligence products as further described in these Terms and as such products may be modified, enhanced, and/or updated from time to time. Enigma Services include (a) any portions of the Enigma Services delivered via www.enigma.com (the “Website”) or an application programming interface (“API”), (b) any proprietary data, attributes, or reports displayed, delivered, or made available to you via the Website, via other media provided or provisioned to you by Enigma, or otherwise in connection with other Enigma Services (the “Enigma Data”), and (c) any software made available to you, whether in object code or source code form (including all integrations and user interfaces made available by Enigma), in connection with the provision of Enigma Services. Enigma Services are further described more fully in the then-current version of any supporting product help and technical specifications documentation found at www.enigma.com/docs (“Documentation”).
1.2 Third-Party Code and Third Party Data
Enigma Services may contain or be provided with software components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of Open Source Software provided to you upon written request. To the extent required by the license that accompanies any Open Source Software, the terms of such license will govern with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. You agree to abide by the terms and conditions in each such Open Source Software license. Any fees charged by Enigma in connection with the Enigma Services do not apply to any components containing Open Source Software for which fees may not be charged under the applicable Open Source Software license. Furthermore, Enigma Services and the Enigma Data may contain datasets that are acquired, licensed, or otherwise provisioned by a third party (“Third Party Data”). Third Party Data may be identified in the Documentation or may be included without attribution. To the extent required by the source or provider of Third Party Data, you agree to abide by any written terms and conditions made available to you in the Documentation with respect to the use of such Third Party Data.
1.3 License to Enigma Services
Enigma hereby grants to you a non-exclusive, non-transferable, non-sublicensable, revocable and worldwide right to access and use the Enigma Services (including the Enigma Data), whether via the Website, an API, or other means established by Enigma, solely for your internal business purposes but only in accordance with: (a) these Terms, in particular Section 2 (Users); (b) the Documentation; (c) any additional agreements that may be entered into between you and Enigma (“Additional Agreements”); and (d) any applicable law, rule or regulation to which you are subject.
1.4 Changes to Enigma Services
The features and functions of Enigma Services, including the Documentation, may change over time, and we may add or remove features or functionality or make features or functionality subject to fees. We will provide you with notice in the event of material changes, deprecations or removal of functionality from Enigma Services so that you may continue using Enigma Services with minimal interruption.
You should become familiar with Sections 2.7 and 2.8 as these sections set out specific “dos and don’ts” to keep in mind when using Enigma Services.
2.1 User Data
You are solely responsible for the accuracy and content of all User Data. You represent and warrant to Enigma that (a) you have sufficient rights in the User Data to authorize Enigma to process, distribute and display the User Data as contemplated by these Terms and the Documentation, (b) the User Data and its use hereunder will not violate or infringe the rights of any third party, and (c) your use of Enigma Services and all User Data is at all times compliant with your own privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
2.2 Ownership of and License to User Data
As between you and Enigma, you will retain all right, title and interest (including any and all intellectual property rights) in and to your User Data as published on Enigma Services. Subject to these Terms, you hereby grant to Enigma a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, and distribute, perform and display (including publicly), modify and create derivative works of the User Data, including as set forth in Section 3.2 (Usage Data and Derived Data), solely to the extent necessary to provide, maintain and improve Enigma Services in accordance with these Terms, the Documentation and any Additional Agreement. You agree that we are permitted to use User Data to solicit Feedback (as defined in Section 3.3).
2.3 Storage and Transmission of User Data
Enigma does not provide an archiving service. Enigma agrees it will not intentionally delete any User Data from Enigma Services unless a User’s access to Enigma Services is terminated or upon the request of a User. Except as otherwise set forth herein, Enigma expressly disclaims all other obligations with respect to storage of User Data. As part the operation of Enigma Services, Enigma’s processing of User Data may involve (a) changes to conform and adapt to technical requirements of connecting networks or devices and (b) transmission to Enigma’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain Enigma Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of User Data. Enigma does not guarantee that Enigma Services are or will remain secure or that access to Enigma Services will be uninterrupted and Enigma will have no liability to you for any unauthorized access or use of any User Data, or any corruption, deletion, destruction or loss of any User Data in Enigma’s possession or control.
2.4 User Account
Certain Users may have to create a user account (“User Account”) to use Enigma Services. You promise to provide us with accurate, complete and updated registration information about yourself for your User Account. You are responsible for maintaining the confidentiality of your login(s), password(s), API key(s) (if any), and account(s) and for all activities that occur under your User Account. You agree to immediately notify Enigma of any unauthorized use of your password or User Account or any other breach of security. Enigma reserves the right to access your User Account in order to respond to your requests for User support.
You will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use Enigma Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You will be responsible for ensuring that such Equipment is compatible with Enigma Services and complies with all configurations and specifications set forth in the Documentation. You will also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your User Account or the Equipment with or without your knowledge or consent.
2.6 Authorized Personnel and Affiliates
If you are an organization, your Authorized Personnel are permitted access to your User Account. “Authorized Personnel” means employees, contractors and third-party service providers who are authorized by a User to use and access a User Account. Your Authorized Personnel will receive user IDs and passwords linked to your User Account in order to access Enigma Services. These credentials are granted to individual, named persons and may not be shared. You will ensure that all Authorized Personnel keep these credentials strictly confidential.
If you are an organization, your “Affiliates” include any entity or person that controls you, is controlled by you, or under common control with you. The term “control” means holding more than 50% of the ownership or voting power of an entity or person. Your Affiliates are not permitted to access or use Enigma Services using the Terms that you accepted. Instead, your Affiliates will need to accept the Terms themselves. If your Affiliates use Enigma Services under these Terms, you and your Affiliates will be jointly and severally responsible for the acts and omissions of your Affiliates. Any claim from any of your Affiliates that use Enigma Services pursuant to these Terms may only be brought against us by you on your Affiliates’ behalf.
2.7 User Obligations
You agree that you will:
(a) be solely responsible for all use (whether or not authorized) of Enigma Services and Documentation under your User Account, including for the quality and integrity of User Data;
(b) use Enigma Services only in accordance with these Terms, the Documentation and any Additional Agreements;
(c) comply with all applicable laws in your use of Enigma Services and the performance of your obligations under these Terms, the Documentation and any Additional Agreement;
(d) be solely responsible for all acts, omissions and activities of your Authorized Personnel, including their compliance with these Terms, Documentation, any Additional Agreements and any applicable laws related to use of Enigma Services;
(e) do your best to prevent unauthorized access to or use of Enigma Services and notify Enigma promptly of any such unauthorized access or use;
(f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers related to your use of Enigma Services; and
(g) ensure that the representations and warranties you make in Section 6.1 (User Representations and Warranties) continue to be true and correct for so long as you are a User.
2.8 User Restrictions
You agree that you will not (and will not allow any third party to):
(a) decompile, disassemble, or otherwise reverse engineer Enigma Services, any Third Party Code, or any Third Party Data or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats or programming interfaces of Enigma Services or the Third Party Code or Third Party Data by any means whatsoever (except, and only to the extent, that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license);
(b) distribute, sell, sublicense, rent, lease or use Enigma Services, Enigma Data, or any Third Party Code or Third Party Data (or any portion thereof) for time sharing, hosting, service provider or similar purposes;
(c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in Enigma Services or any Third Party Code or Third Party Data (including any reports or data printed via the use of Enigma Services);
(d) modify any part of Enigma Services or any Third Party Code or Third Party Data, create a derivative work of any part of Enigma Services or any Third Party Code or Third Party Data, or incorporate Enigma Services or any Third Party Code or Third Party Data into or with other software, except to the extent expressly authorized in writing by Enigma or as permitted by an applicable Open Source Software license;
(e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to Enigma Services;
(f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy or other protection used by Enigma in connection with Enigma Services, or use Enigma Services together with any user credentials or other copy protection device not supplied by Enigma;
(g) use Enigma Services to develop a product which is competitive with Enigma Services;
(h) use unauthorized User credentials or distribute or publish such credentials except as may be expressly permitted by Enigma in writing;
(i) if you are a Paying User, share your User credentials and User Account with a non-Paying User or if you are a registered User, share your User credentials and User Account with an unregistered User;
(j) assert, nor will you authorize, assist or encourage any third-party to assert, against Enigma or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding Enigma Services or any support you have purchased or used hereunder;
(k) automate processes, including without limitation, API calls, or refreshes of visualizations or dashboards, if such automation has a detrimental impact on Enigma’s ability to provide Enigma Services to its other Users; or
(l) use Enigma Services in a manner that “crawls”, “scrapes” or “spiders” any data or information relating to Enigma Services (including User Data) through any means.
2.9 Permitted Disclosures
We retain all ownership rights in the technology underlying Enigma Services. We also own any data derived from your use of Enigma Services or the information you provide us. If you provide us with feedback, we are free to use it as we see fit (provided that we comply with applicable law).
3.1. Ownership of Enigma Technology
Notwithstanding anything to the contrary contained herein, except for the limited access and use rights expressly provided herein, Enigma retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to Enigma Services, the Website, the Documentation, any other Enigma deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, and any other non-customer specific data and statistical data), technology, reports, documentation, as well as any related process or methodology provided or used by Enigma, and with respect to each of the foregoing, any copies, modifications, improvements, derivative works, or enhancements thereto however developed or provided (including any which incorporate any of your Feedback (as defined in Section 3.3) or suggestions) (collectively, “Enigma Technology”). You acknowledge that you are obtaining only a limited right to access and use Enigma Services on a hosted basis and that irrespective of any use of the words “purchase”, “sale”, “sublicense” or like terms hereunder no ownership rights in the Enigma Technology are being conveyed to you under these Terms or otherwise, and further acknowledge that nothing contained in these Terms will be construed to convey to you ownership of any intellectual property rights in or to any Enigma Technology or any related methodologies or processes. Nothing in this Section 3.1 will be deemed as granting Enigma ownership of User Data or in any way impacting your ownership of User Data.
3.2 Derived Data
Enigma is and will be the sole owner of (a) any data reflecting access or the use of the Enigma Services by or on behalf of you or your Authorized Personnel (“Usage Data”) and (b) information collected by Enigma by referencing User Data or otherwise derived by processing User Data, including without limitation any inferences, insights, or other predictive information or data that is sufficiently different from User Data such that User Data cannot be reverse engineered or otherwise identified from analysis or further processing (together with Usage Data, the “Derived Data”), and you hereby assign to Enigma all right, title, and interest that you may have in the foregoing Derived Data. Enigma has the right to make any lawful use of Derived Data.
From time to time, you may submit comments, information, questions, data, ideas, descriptions of processes, or other information to Enigma (collectively, “Feedback”). We may also solicit Feedback from you through interviews or discussions. You agree that all Feedback is and will be given entirely voluntarily and gratuitously. Notwithstanding anything to the contrary in these Terms, Feedback, even if designated as confidential by you, will not, absent a separate written agreement, create any confidentiality obligation for or upon Enigma. You will not give Feedback that is subject to license terms that seek to require any Enigma product, technology, service or documentation incorporating or derived from such Feedback, or any Enigma intellectual property, to be licensed or otherwise shared with any third party. Enigma may in connection with any Enigma Service freely use, copy, disclose, license, distribute and exploit any Feedback in any manner it sees fit in accordance with applicable law without any obligation, royalty or restriction based on intellectual property rights or otherwise.
4. FEES & PAYMENT
Please pay us for use of Enigma Services. If you don’t, we may suspend (or terminate) your User Account. We may increase or otherwise change our fees from time to time and you are responsible for reviewing the fee information currently in effect each time you use Enigma Services.
4.1. Free and Premium Enigma Services
Certain Enigma Services may be provided at no cost to you (“Free Services”) whereas others may have an associated cost at and over a specified volume of API calls per month (“Premium Services”). Enigma reserves the right to convert Free Services to Premium Services and/or change the API call volume threshold at any time and for any reason.
4.2. Fees and Payment
Information on pricing is found in the area of our Website related to the applicable Enigma Service (the “Pricing Terms”). The Pricing Terms are applicable to all Users unless specific pricing terms are agreed between you and Enigma in an Additional Agreement. Enigma reserves the right to modify the Pricing Terms from time to time without notice to you. You are responsible for reviewing and understanding the current Pricing Terms in effect at the time of your use of Enigma Services. If you are a Paying User, you are obligated to pay all applicable fees as set forth in the Pricing Terms or in any Additional Agreement for your use of Enigma Services. On the first day of every month, the credit card or other payment method associated with your User Account will be automatically charged for all usage associated with your User Account during the previous month. Except as expressly set forth herein, all payments are non-refundable once paid. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Enigma will charge you for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. If any withholding tax is required by applicable law to be paid by you in relation to payments due to Enigma hereunder, you will provide Enigma with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.
4.2 Suspension for Non-Payment
If payment does not go through for any reason, your access to applicable Enigma Services, including to any API key(s), may be suspended, and we will have no obligation to provide such Enigma Services to you until the billing issue has been resolved and we receive payment for your outstanding User Account charges.
4.3 Fee Disputes
If you are disputing any fees or taxes, you must act reasonably and in good faith, and you must cooperate diligently with us to resolve the dispute. You must provide written notice to us within thirty (30) days of the date that you are charged for the fees or taxes in dispute, and we will work together with you to resolve the dispute promptly.
5.1 Confidential Information
"Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Any software, pricing, documentation or technical information provided by Enigma (or its agents) and performance information relating to Enigma Services, is Confidential Information of Enigma without any marking or further designation. User Data is your Confidential Information without any marking or further designation. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the Receiving Party, without restriction, prior to disclosure by the Disclosing Party; (c) was rightfully disclosed to the Receiving Party, without restriction, by another person without violation of the disclosing party's rights; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
5.2 Use and Disclosure
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party agrees to (a) only use Confidential Information of the Disclosing Party for purposes consistent with these Terms and any Additional Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees, contractors or advisors (“Representatives”) who need that access for purposes consistent with these Terms and who are legally bound to keep such information confidential consistent with this Section 5. The Disclosing Party will ensure that its Representatives comply with these Terms and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives.
5.3 Compelled Disclosure
Enigma or its Representatives may disclose your Confidential Information if so required pursuant to legal process, including, but not limited to, a law, regulation or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You may contest any such compelled disclosure at your own cost and expense.
5.4 Injunctive Relief
You and Enigma expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 5 and that, in the event of an actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6. REPRESENTATIONS AND WARRANTIES
All Users of Enigma Services are required to make certain representations to us with respect to authority to enter into these Terms, ownership or permissions relating to User Data and content of User Data. If you are under the age of 18, you are not permitted to use Enigma Services.
If you are a Paying User, Enigma provides a limited warranty to you with respect to the operation of Enigma Services. To seek the benefit of the limited warranty, you must make a claim within thirty days of the date on which the condition giving rise to the breach of warranty first occurred.
6.1 User Representations and Warranties
You represent and warrant to Enigma that: (a) you have full power and authority to enter into these Terms; (b) you own all User Data or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Enigma to perform its obligations) in connection with Enigma Services without obtaining any further releases or consents; (c) your User Data and your other activities in connection with Enigma Services, and Enigma’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, patent right, right of privacy or publicity, or other personal or proprietary right, nor does your User Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (d) you are eighteen (18) years of age or older.
6.2 Services Warranty
Enigma warrants to Paying Users that Enigma Services will operate in substantial conformity with the applicable Documentation. Enigma’s sole liability (and your sole and exclusive remedy as a Paying User) for any breach of this warranty will be, in Enigma’s sole discretion and at no charge to you, the use by Enigma of commercially reasonable efforts to correct the reported non-conformity. If Enigma determines such remedy to be impracticable, you may be entitled to receive, as your sole remedy, a refund of fees paid or payable to Enigma in the thirty (30) day period prior to the date the warranty claim was made.
The warranty in Section 6.2 will not apply: (a) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first occurred; (b) if Enigma Services are used with hardware or software not authorized in the Documentation; (c) if the condition was caused by misuse, unauthorized modifications or third-party hardware, software or services; or (d) to any non-Paying Users.
6.4 Export Controls
Enigma Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions. You and Enigma each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Enigma, in providing Enigma Services, and, in the case of you, in receiving and using Enigma Services respectively, and to the extent consistent with these Terms, you will obtain any necessary license or other authorization to export, re-export, or transfer Enigma Services. You represent and warrant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country or (b) on any of the U.S. government lists of restricted end users.
7. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
Other than the explicit warranties provided in Section 6, Enigma Services are provided “as is”. If you make a claim against us, our liability to you is limited to damages you have directly incurred, which is capped at the fees paid by you for Enigma Services.
7.1 Warranty Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.2, ENIGMA SERVICES, INCLUDING, WITHOUT LIMITATION, THE THIRD PARTY CODE AND THIRD PARTY DATA, AND THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ENIGMA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ENIGMA DOES NOT WARRANT THAT ENIGMA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES ENIGMA MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF ENIGMA SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM ENIGMA OR THROUGH ENIGMA SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO ENIGMA SERVICES, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM POSSIBLE UNDER ANY SUCH APPLICABLE LAW.
7.2 Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL ENIGMA AND ITS AFFILIATES AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “ENIGMA PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CONTENT OR DATA, ARISING OUT OF OR IN CONNECTION WITH ENIGMA SERVICES, INCLUDING, WITHOUT LIMITATION, THE THIRD PARTY CODE AND THIRD PARTY DATA, THE WEBSITE OR THESE TERMS; (B) WITHOUT LIMITING THE FOREGOING, FOR DAMAGES OF ANY KIND RESULTING FROM (I) YOUR USE OF OR INABILITY TO USE ENIGMA SERVICES, INCLUDING, WITHOUT LIMITATION, THE THIRD PARTY CODE AND THIRD PARTY DATA,OR THE WEBSITE, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN
CONNECTION THEREWITH OR (II) ANY LOSS OF USER DATA FROM THE WEBSITE; OR (C) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN CONNECTION WITH ENIGMA SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. THESE LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT ENIGMA OR THE ENIGMA PARTIES HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF BOTH ENIGMA AND EACH OF THE OTHER ENIGMA PARTIES. SOME JURISDICTIONS MAY PROHIBIT LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGE. IN THESE JURISDICTIONS, ENIGMA’S AND THE OTHER ENIGMA PARTIES’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT UNDER ANY SUCH APPLICABLE LAW.
If you are a Paying User, we will defend any intellectual property infringement claims brought by a third party against you with respect to Enigma Services and cover any damages awarded. However, in certain situations we may be off the hook for defense and damages, such as where you use Enigma Services in breach of these Terms or combine Enigma Services with another application.
If a third party makes a claim against Enigma resulting from your breach of these Terms, your use of Enigma Services or your User Data, you must cover any damages awarded against us.
Section 8.3 details the process we both have to follow to get the benefit of indemnification.
8.1 Indemnification by Enigma
If you are a Paying User, Enigma will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that Enigma Services infringe or misappropriate such third party’s intellectual property rights (an “Infringement Claim”), and Enigma will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for any amounts you pay to settle an Infringement Claim under a settlement for which Enigma has given its prior written approval. Notwithstanding the foregoing, Enigma will not have any liability under this Section 8.1 to the extent an Infringement Claim arises from: (a) your use of Enigma Services in breach of these Terms; (b) the combination, operation or use of Enigma Services with other applications; (c) modification to Enigma Services other than by Enigma; or (d) your or your Authorized Personnel’s use of Enigma Services in a manner for which Enigma Services were not designed or intended or as not described in the Documentation.
8.2 Indemnification by User
You will defend Enigma and its officers, directors, employees and affiliates (collectively, the “Enigma Indemnified Parties”) from and against all claims, demands, suits or proceedings made or brought against an Enigma Indemnified Party by a third party relating to or resulting from (a) your or your Authorized Personnel’s breach of these Terms, (b) your or your Authorized Personnel’s use of Enigma Services or (c) your User Data, including, without limitation, any intellectual property claims for infringement or misappropriation (collectively, “User Indemnifiable Claims”), and you will indemnify the Enigma Indemnified Parties from any damages, attorney fees, and costs finally awarded against the Enigma Indemnified Parties as a result of, or for any amounts the Enigma Indemnified Parties pay to settle a User Indemnifiable Claim under a settlement for which you have given your prior written approval.
8.3 Indemnification Process
An indemnifying party (an “Indemnifying Party”) will have no obligations pursuant to Section 8.1 or Section 8.2, as applicable, unless and until the party seeking indemnification (an “Indemnified Party”) provides: (a) prompt written notice of any Infringement Claim or User Indemnifiable Claim (each, a “Claim”) to the Indemnifying Party (although the failure to give such notice will not preclude the Indemnified Party’s ability to seek indemnification so long as the Indemnifying Party is not materially prejudiced as a result; (b) the exclusive right to control and direct the investigation, defense and settlement of such Claim (subject to the settlement approval rights of the Indemnified Party); and (c) all reasonable cooperation at the expense of the Indemnifying Party. Notwithstanding the foregoing, (x) an Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim and (y) an Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to Section 8.1 or 8.2, as applicable, admitting liability or fault on behalf of the Indemnified Party nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written approval.
Unless you tell us not to, we are permitted to use your name and logo in marketing Enigma Services to other Users and potential Users.
9.1 Use of Logos and Marks
You grant to Enigma and its Affiliates a limited, non-exclusive, non-transferable (except as otherwise provided herein), royalty-free license to use your trade names, trademarks, and service marks (collectively, together with the Enigma marks listed above, the “Marks”).
Your grant of the foregoing rights is subject to the following: (a) Enigma does not create a unitary composite mark involving a Mark of the other without your prior written approval; (b) Enigma display symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other’s Marks in accordance with applicable trademark law and practice; and (c) Enigma complies with any written guidelines provided by you related to use of your Marks. Enigma acknowledges your ownership rights in your Marks and agrees that all use and goodwill of the Marks will inure to the benefit, and be on behalf, of you. Enigma acknowledges that its utilization of your Marks will not create in it, nor will Enigma represent it has, any right, title, or interest in or to your Marks other than the licenses expressly granted herein.
You grant Enigma the right to publicly identify you as a User. Enigma will not imply any untrue sponsorship, endorsement or affiliation between you and Enigma.
9.3 Termination of Rights
You may revoke the rights granted in Sections 9.1 and/or 9.2 at any time by providing written notice to Enigma. Upon termination of these Terms, both you and Enigma are required to remove any public references to our relationship.
10. TERM AND TERMINATION
Enigma Services are provided on a non-subscription basis. That means you are free to terminate your use of Enigma Services at any time (although we will be sad to see you go!). We may also terminate or suspend your access to Enigma Services at any time, for example, if we find that you are breaching these Terms.
Even if your access to Enigma Services is terminated, certain rights and obligations of you and Enigma continue. These are described in more detail in Section 10.5.
These Terms are effective on the date that is the earlier of (a) your acceptance of these Terms or (b) your access to or use of Enigma Services, and continue until terminated by you or Enigma.
10.2 Termination by User
You may terminate your User Account and/or these Terms at any time for any reason by contacting email@example.com. Any termination by you will not relieve you of any current or future obligations to pay any fees owed to us under these Terms or any Additional Agreement.
10.3 Termination by Enigma
Enigma may terminate (or suspend, in our discretion) your access to Enigma Services, your User Account and these Terms at any time for any reason by providing notice to you. For example, in the event of your breach of these Terms, Enigma may terminate your access to Enigma Services or otherwise may suspend such access and provide you with an opportunity to cure any such breach. Termination and/or suspension is not an exclusive remedy available to Enigma and the exercise by either party of any remedy under these Terms will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
10.4 Effect of Termination
Upon any termination of these Terms by you or Enigma, you are required to immediately cease any and all use of and access to Enigma Services, and direct all your Authorized Personnel to do the same. You must also destroy (or, at Enigma’s request, return) any Confidential Information of Enigma in your or your Authorized Personnel’s possession. If you are a Paying User, you will be charged for your use of Enigma Services up to the time of termination and you are obligated to pay any such charged fees. You acknowledge that, except as exported or printed prior to termination by you as may be permitted through the functionality of Enigma Services, following termination you will have no further access to any User Data input into Enigma Services, and that Enigma may delete any such User Data at any time. Except where an exclusive remedy is specified in these Terms, the exercise by either party of any remedy under these Terms, including termination, will be without prejudice to any other remedies it may have under these Terms, by law, or otherwise.
10.5 Survival of Terms
The following sections will survive any termination of these Terms: Sections 2.7 (User Obligations), 2.8 (User Restrictions), 2.9 (Permitted Disclosures), 3 (Ownership), 4.2 (Fees and Payment), 5 (Confidentiality), 7 (Warranty Disclaimer and Limitation of Liability), 8 (Indemnification), 10 (Term and Termination), 11 (General Terms) and 12 (Dispute Resolution and Arbitration).
This Section provides answers to procedural questions you may have, such as
We encourage you to read this section carefully to understand how it impacts your rights and obligations under these Terms.
These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Enigma may assign these Terms to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Enigma’s assets or equity. You may not assign or transfer these Terms without Enigma’s prior written approval, except that you may assign these Terms without Enigma’s prior written approval in connection with any merger, consolidation, sale of all or substantially all of your assets or equity so long as: (a) the assignee must not be a direct competitor of Enigma; (b) you provide prompt written notice of such assignment to Enigma; (c) the assignee is capable of fully performing your obligations under these Terms, and (d) the assignee agrees to be bound by the terms and conditions of these Terms. Any attempt to transfer or assign these Terms without such prior written approval will be null and void.
11.2 Governing Law; Jurisdiction and Venue
Enigma Services are controlled and operated from the United States, and are not intended to subject Enigma to any non-U.S. jurisdiction or law. Excluding conflict of laws rules, these Terms will be governed by and construed under the laws of the State of New York. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to these Terms. Unless otherwise elected by Enigma in a particular instance, you expressly agree to submit to the exclusive personal jurisdiction of the federal and state court of the State of New York for the purpose of resolving any dispute if the arbitration provision in Section 12 is found to be unenforceable or if Enigma does not elect to pursue arbitration pursuant to Section 12.
Enigma reserves the right to change these Terms from time to time by (a) posting revised Terms on the Website and (b) providing notice to you that these Terms have changed by any reasonable means, including notice posted to the Website and/or sent to the contact information linked to your User Account. Any changes will not apply retroactively. You are responsible for reviewing and becoming familiar with any changes to these Terms.
From time to time, we may ask you to review and explicitly agree to (or reject) revised Terms. In such cases, the changes will become effective at the time of your agreement to the revised Terms. Otherwise, you are bound by changes on the effective date as stated in the revised Terms. If any change to these Terms is not acceptable to you, your only remedy is termination in accordance with Section 10.
11.4 No Waiver
Our failure to enforce at any time any provision of these Terms, any Additional Agreement or any other of your obligations does not waive our right to do so later. If we do expressly waive any provision of these Terms, any Additional Agreement or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by the party waiving its rights to be legally binding.
11.5 Interpretation; Construction; Severability
The heading references and annotations at the start of each section are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions of these Terms. Unless expressly stated otherwise, the use of the term “including” or “such as” is not to be interpreted as limiting the generality of the text preceding the provision. No provision of these Terms will be construed against any party on the basis of that party being the drafter. If any provision of these Terms is adjudged by any court or tribunal of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms will otherwise remain in effect.
11.6 Entire Agreement; Order of Precedence
You and Enigma are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and Enigma will be solely responsible for all of its respective employees, contractors and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. You and Enigma will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of its respective activities, or those of each of its respective employees, contractors or agents, in the performance of these Terms. Neither you nor Enigma has the authority to commit the other in any way and will not attempt to do so or imply that it has the right to do so.
11.8 Audit Rights
Enigma may audit your compliance with these Terms, your use of Enigma Services, and your software monitoring system and records so long as such audit is conducted during regular business hours with reasonable notice to you. If such inspections or audits disclose that you have accessed or permitted access to Enigma Services in a manner that is not permitted under these Terms, then Enigma may terminate these Terms pursuant to Section 10 and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Enigma may be entitled to under these Terms and applicable law.
11.9 Force Majeure
No failure, delay or default in performance of any obligation of you or us will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of you or us, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause is required to take all reasonable actions to minimize the consequences of any such cause.
You agree that Enigma can provide notices regarding Enigma Services to you through the Website or by mailing notices to the contact information associated with your User Account and that electronic delivery of a notice has the same legal effect as if we provided you with a
physical copy. Any notices to Enigma must be provided in writing and sent to the following address:
Enigma Technologies, Inc.
245 Fifth Avenue, 17th Floor
New York, NY 10016
Attention: Legal Department
Notices sent by mail will be deemed given either upon receipt if by personal delivery or if sent by certified or registered mail (return receipt requested) or 24 hours after it is sent if by next day delivery by a major commercial delivery service. Any notices sent by email will be effective upon receipt. Any notice posted to the Website will be deemed to have been received by you within 24 hours of the time such notice is posted.
12. DISPUTE RESOLUTION AND ARBITRATION
We hope you have a positive experience using Enigma Services. Should a dispute arise, please contact our legal team before bringing a legal case. If our legal team is not able to resolve your dispute, you agree that we may elect to submit the dispute to binding arbitration (unless it’s a small claims court case, an IP dispute or a claim seeking injunctive relief). You waive any rights you may have to bring disputes via a class proceeding or in front of a jury.
For any dispute with Enigma, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us directly. In the unlikely event that Enigma has not been able to resolve a dispute it has with you after sixty (60) days, Enigma reserves the right to resolve any claim, dispute, or controversy arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof, by binding arbitration by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf), if you are a consumer or its Commercial Arbitration Rules (currently available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf), if you are not a consumer, in each case as amended by these Terms. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow these Terms and will be final and binding.The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction in accordance with these Terms. Notwithstanding any of the foregoing, nothing in these Terms will limit the right of you or Enigma to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state or local agencies if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
If you are a consumer and do not want to be bound by this arbitration provision, you may opt out by delivering notice to us in accordance with Section 11.10 within thirty (30) days of the earlier of the date you first access or use Enigma Services and the date you agree to these Terms.
12.2 Class Action and Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED ENIGMA SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. THIS WAIVER MAY BE WAIVED BY ENIGMA IN ITS SOLE DISCRETION.
Previous versions of Enigma's Terms of Service can be found here.