Last Updated: Oct 20, 2026
PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THIS END USER LICENSE AGREEMENT (THE “AGREEMENT” OR THE “TERMS”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER” OR “YOU”), REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS ANOTHER VALID AGREEMENT FOR THE PURCHASE AND USE OF THE OPSIN SOLUTION, INCLUDING A WRITTEN AGREEMENT SIGNED BY CUSTOMER AND OPSIN (WHICH WILL NOT BE SUPERSEDED OR AMENDED BY CUSTOMER’S ASSENT TO THIS AGREEMENT), THIS AGREEMENT GOVERNS CUSTOMER’S RIGHTS TO USE THE OPSIN SOLUTION, A CLOUD-BASED SAAS SOLUTION FOR VISIBILITY AND BUSINESS CONTEXT (THE “SOLUTION”). BY ASSENTING TO THIS AGREEMENT (EITHER BY CLICKING, CHECKING A BOX, ACCEPTING A QUOTE OR PLACING AN ORDER), CUSTOMER ACCEPTS THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND OPSIN, INC., A DELAWARE CORPORATION, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, “OPSIN”, “COMPANY”, “WE”, OR “US”). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ASSENT, AND CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE OPSIN SOLUTION. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE AGREEMENT, THE DATE SET FORTH ON AN ORDER OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES OR USES THE SOLUTION (“EFFECTIVE DATE”).
These Terms will apply to any use of the Solution by you on anyone on your behalf. Without derogating from the foregoing, any use of the Solution is subject to these Terms and all applicable laws, rules and regulations in the country in which the Solution is being used. The responsibility to read, understand and comply with such applicable law is at your full responsibility as a user. The Solution is not available to persons who are not legally eligible to be bound by these Terms.
"Addendum” means an Addendum to this Agreement setting forth additional terms relating to a Solution.
“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).
“Aggregated Data” means any data that has been aggregated so that it is not identifiable or attributable to Customer or any of its Authorized Users and may include data based on Customer’s use of the Solutions.
“Analytics Data” means any technical, statistical or analytical data; correlative and/or contextual data; output from analytics and detections which are periodically gathered or aggregated in connection with Customer use of a Solution, including but not limited to data generated in connection with Customer's access, use and configuration of the Solutions and data derived from it (e.g., interacting with the Solutions), but which excludes any data that could be used to identify Customer or any of its Authorized Users.
“Applicable Data Protection Laws” has the meaning given in Exhibit A (Data Processing Addendum).
“Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.
“Customer” means, as the context requires, in addition to the entity identified above, any Customer Affiliate that places an Order under these Terms, uses or accesses any Solution hereunder, or benefits from the Customer’s use of a Solution.
“Customer Data” means all data, information, records and other content provided, uploaded, transmitted, inputted, edited, authored, or otherwise submitted by Customer or its Authorized Users under this Agreement in connection with the Solutions. Customer Data does not include any Opsin Data or publicly available data.
“Documentation” means Opsin’s end-user technical documentation included in the applicable Solution.
“Error” means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation which causes a material disruption of Customer’s systems.
“Fees” means, with respect to any Order, the amount payable by Customer to Opsin or a Reseller for any Solution specified on said Order.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications; (v) websites and internet domain name registrations; and (vi) computer programs, operating systems, applications,
firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof (“Software”).
“Internal Use” means access or use solely for Customer’s and its Affiliates’ own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by Customer’s and its Affiliates’ Authorized Users. For clarity, nothing in this Agreement will prevent or prohibit Customer from providing access to redacted Opsin Data specific to Customer or a threat to Customer’s environment to Customer’s representatives, including third parties, in the event of a security incident or if required to respond to inquiries from Customer’s clients or regulators, to the limited extent such Opsin Data is needed for the presentation or understanding of said security incident.
“Machine-Generated Data” means any machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, code, system files, log files, dll files, login data, binary files, tasks, resource information, commands, protocol identifiers, URLs, network data which may be periodically gathered or aggregated in connection with Customer use of a Solution but which excludes any data that could be used to identify Customer or any of its Authorized Users.
“Opsin Data” means all (i) Opsin Confidential Information; (ii) Analytics Data, (iii) Aggregated Data; (iv) Machine-Generated Data; and (v) Threat Data.
“Object Code” means a form of software in a language that a computer can execute directly but is not generally readable by humans without reverse assembly, reverse compiling or reverse engineering.
“Order” means any purchase order or other ordering document (including any SOW) accepted by Opsin or a Reseller that identifies the following ordered by Customer: Solution, Solution quantity based on Opsin’s applicable license metrics, price and Subscription/Order Term.
“Personal Data” means any information that relates to an identified or identifiable natural person and which is protected as "personal data", "personal information" or "personally identifiable information" under Applicable Data Protection Laws.
“Product Services” means, collectively (i) the standard technical support services for certain Products provided by Opsin as specified in the applicable Order, (ii) training provided by Opsin as specified in the applicable Order, and (iii) any other Opsin services provided or sold with Products. Product Services do not include Professional Services. “Services” means Product Services and Professional Services, collectively.
“Reseller” means an entity that purchases Solutions from Opsin for purposes of resale to Customer.
“Solution” (also referred to herein as a “Product”) means Opsin’s cloud-based software or other products ordered by Customer as set forth in the relevant Order, the Opsin Data, any Addendum, any Documentation and any Updates thereto that may be made available to Customer from time to time by Opsin.
“Statement of Work” or “SOW” means a mutually agreed upon and executed written document describing the professional services (“Professional Services”) to be performed by Opsin for Customer, including any fees and expenses related thereto.
“Subscription/Order Term” means the period of time set forth in the applicable Order during which: (i) Customer is authorized by Opsin to access and use the Product, or Product Service, or (ii) the period during which Professional Services may be performed.
“Threat Data” means any malware, spyware, virus, worm, Trojan horse, indicators of compromise, threat behaviors, other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data that is related to potentially unauthorized third parties associated with the Threat Data and is collected or discovered during the course of using or receiving Opsin Solutions, excluding any such information or data that identifies Customer or to the extent that it includes Personal Data.
“Updates” means any correction, update, upgrade, patch, or other modification or addition made by Opsin to any Product and provided to Customer by Opsin from time to time on an as available basis. Updates do not include additional functionality which may be separately licensed by Opsin.
2.1 Affiliates. Any Affiliate purchasing hereunder, or using or accessing any Solution hereunder, or benefitting from the Customer’s use of a Solution, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing these Opsin Terms and Conditions will remain responsible for Customer’s Affiliates’ acts and omissions unless Customer’s Affiliate has entered into its own agreement with Opsin.
2.2 Direct Orders. Customer may purchase Solutions by submitting an Order directly to Opsin. Opsin will not be obligated to provide any Solutions until the applicable Order for those Solutions has been accepted by Opsin. For each Order (including renewals), Customer shall issue a purchase order that incorporates the applicable Opsin quote by reference (“Purchase Order”). In the case of Services, Opsin will not be obligated to perform any Services until a SOW describing those Services has been executed by both parties. Orders are non-cancellable.
2.3 Reseller Orders. To place an Order through a Reseller, Customer shall provide the Reseller with a purchase order (or other similar document acceptable to Reseller), in response to a valid quote from the Reseller. Any Order placed through a Reseller is subject to, and Opsin’s obligations and liabilities to Customer are governed by, this Agreement, with the exception of those set forth in Section 2.2 and Section 2.5 (Payment and Taxes). All terms related to pricing, billing, taxes, invoicing and payment shall be
addressed exclusively between Customer and Reseller.
2.4 Order Terms. If Orders are submitted on forms other than Opsin’s, then only transaction-specific terms stating the Solutions ordered, quantity, price, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or Reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of Opsin and returned to Customer (or the applicable Reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein and only with respect to those Solutions ordered on such Order. Orders are non-cancellable.
2.5 Payment and Taxes. Customer will pay the Fees for Solutions to the Reseller or Opsin as set forth in the applicable Order. For Orders placed with Opsin and unless otherwise expressly set forth on the Order, signed by Opsin, Customer will pay the undisputed fees and amounts stated on each Order within 45 days after receipt of the applicable invoice. Failure to timely pay any amounts due may result in Opsin revoking Customer’s access and use rights or otherwise suspending the Services. Except as otherwise expressly provided in this Agreement or as agreed by Opsin in a signed SOW, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer’s purchase of the Solutions and the transactions hereunder, except for taxes based on Opsin’s income or with respect to Opsin’s employment of its employees.
3.1 Evaluation/POC Use. Opsin may make a Solution available to Customer for evaluation, proof-of-concept, trial, beta, pilot, or other non-production use (an “Evaluation”). Unless otherwise stated in an applicable Order or other writing from Opsin, an Evaluation is provided solely for Customer’s Internal Use to evaluate the Solution, for the period authorized by Opsin, and may be terminated by either party at any time upon written notice, including email. Customer has no obligation to purchase the Solution following an Evaluation. An Evaluation may be provided without charge or subject to fees specified by Opsin. Unless otherwise expressly agreed in writing, Evaluation Solutions are provided “AS IS” and “AS AVAILABLE,” without any warranty, service level, support obligation, indemnity, or commitment that Opsin will continue to offer, maintain, develop, or make generally available any Evaluation Solution or functionality. To the maximum extent permitted by law, Opsin disclaims all liability arising from or relating to an Evaluation, except to the extent liability cannot be excluded by law. All other terms of this Agreement applicable to Solutions, including Customer’s use restrictions, confidentiality obligations, Opsin’s ownership and data rights, and the limitations set forth in Section 7, apply to an Evaluation. In the event of a conflict between this Section 3.1 and another provision of this Agreement with respect to an Evaluation, this Section 3.1 controls.
3.2 Access & Use Rights. Subject to the terms and conditions of this Agreement (including Opsin’s receipt of applicable fees), Opsin grants Customer, under Opsin’s Intellectual Property rights in and to the applicable Product, a non-exclusive, non-transferable, non-sublicensable license to access and use the Products in accordance with any applicable Addendum and Documentation solely for Customer’s Internal Use during the applicable Subscription/Order Term. Customer’s access and use is limited to the quantity in the applicable Order.
3.3 Restrictions. The access and use rights set forth in Section 3.2 (Access & Use Rights) do not include any rights to, and Customer will not, with respect to any Solution (or any portion thereof): (i) employ or authorize anyone other than Customer or Customer Affiliates to use or view the Solution or Documentation, or to provide management, hosting, or support for a Solution; (ii) alter, publicly display, translate, create derivative works of or otherwise modify a Solution, except as necessary to exercise Customer’s rights pursuant to this Agreement or as agreed by Opsin in a signed SOW; (iii) rent, lease, lend, sell, encumber, sublicense, assign, distribute, publish, transfer or otherwise make available the Solution or Documentation, or any portion thereof, to any third party who is not an Authorized User, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) allow third parties to access or use a Solution; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for a Solution (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to a Solution or its related systems or networks without Opsin’s prior written consent, for the avoidance of doubt no restriction is made hereunder with respect to any open source software included in a Solution for which such restrictions would violate the terms of said open source software license; (vi) use a Solution to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (vii) remove or alter any notice of proprietary right appearing on a Solution; (viii) upload personal data as defined in the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, or similar data protection or privacy laws in applicable jurisdictions, without prior authorization from the data owner and Opsin, (ix) submit publicly-visible information that is defamatory, obscene, threatening, abusive or hateful, as determined by Opsin in its sole discretion, or (x) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use a Solution in accordance with laws, rules and regulations directly applicable to Customer, not infringe or violate the intellectual property rights of any third party, and acknowledges that Customer is solely responsible for determining whether a particular use of a Solution is compliant with such laws. In using the Services, Customer will not permit unauthorized use of the Services, any output of the Services, or Opsin’s Solutions and other tools and applications to which Customer may be given access as part of the Services.
3.4 Installation and User Accounts. Customer is responsible for the security for each account of an Authorized User, and each account shall only be authenticated to a single individual. Customer shall notify Opsin if Customer learns of any unauthorized access or use of Customer’s user accounts or passwords for a Solution.
3.5 Third-Party Software. Opsin uses certain third-party software in its Products, including what is commonly referred to as open source software. Under some of these third-party licenses, Opsin is required to provide Customer with notice of the license terms and attribution to the third party. Licensing terms and attributions for such third-party software are available upon request.
3.6 Ownership & Feedback. Products and Product Services are made available for use or licensed, not sold. Opsin or its suppliers, own and retain all right, title and interest (including all Intellectual Property rights) in and to the Solutions. Customer may provide Opsin with suggestions, comments and feedback with regard to the Solutions (collectively, “Feedback”). Customer hereby grants Opsin a non-exclusive, worldwide, perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and disclose the Feedback in any manner and to display, perform, copy, make, have made, use, sell, offer to sell, import, and otherwise dispose of products embodying the Feedback in any manner and via any media, without reference to the source, including, without limitation, the testing, development, maintenance and improvement of the Solutions. Any use of Customer feedback or suggestions will be at Opsin’s sole discretion, and Customer shall have no responsibility or liability to Opsin or any third party for any such use. All output from the Professional Services and all associated Intellectual Property rights will vest in and remain with Opsin absolutely.
3.7 Data Privacy. To the extent Opsin processes Personal Data on behalf of Customer under applicable law, the Opsin Data Processing Addendum attached hereto as Exhibit A shall apply. Opsin may use Customer Data for the purpose of: (i) analyzing, characterizing, deflecting, attributing, warning of, and/or responding to threats against Customer and others, (ii) analyzing trends or benchmarking system performance, (iii) providing, maintaining or improving Opsin Solutions; and (iv) any other purposes consistent with applicable law, provided, however, that in all of the foregoing use cases, data is used in a way that does not identify Customer or any Authorized User. Customer represents and warrants that it has all rights and permissions necessary to transfer Customer Data and grant Opsin access to such Customer Data as contemplated herein.
4.1 Definitions. In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes publicly available (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient in writing;
(iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
4.2 Restrictions on Use. Except as permitted under Section 4.3 (Exceptions), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. Within 72 hours of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.
4.3 Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser’s Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony, unless Recipient’s performance under the terms of the Agreement is a material element of the
proceeding or investigation against the Recipient.
4.4 Destruction. Upon Discloser’s written request, Recipient shall destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
4.5 Equitable Relief. Each party acknowledges that a breach of this Section 4 (Confidentiality) may cause the other party irreparable injury and damage. Therefore, each party agrees that the non-breaching party may seek injunctive relief in a court of competent jurisdiction, in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.
5.1 Pre-Production Versions. Any pre-production or beta feature or version of a Solution is subject to Section 3.1 and is provided “AS IS” without warranty or liability of any kind. Opsin has no obligation to continue to develop, productize, support, repair, offer for sale, or otherwise provide any such feature or Solution. Customer agrees that its purchase is not contingent upon the delivery of any future functionality or features or upon any oral or written statements regarding future functionality or features.
5.2 Warranty. If Customer has licensed a Solution, Opsin warrants to Customer during the applicable Subscription/Order Term that: (i) the Solution will substantially operate without Error; and (ii) Opsin used industry standard techniques to prevent the Solution at the time of delivery from injecting malicious software viruses into Customer’s systems where the Solution is installed. Customer must notify Opsin of any warranty claim during the Subscription/Order Term. Customer’s sole and exclusive remedy and the entire liability of Opsin for its breach of this warranty will be for Opsin, at its own expense, to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error within a commercially reasonable time, including providing an Update or requiring Customer to install a newer version that corrects the Error (b) procure a substitute Solution, that substantially conforms to the non-performing function of the Solution or (c) terminate Customer’s license to access and use the applicable non-conforming Solution and refund the prepaid fee prorated with such pro-ration based on the number of days remaining in the portion of the Subscription/Order Term for the specific Solution which Customer has paid fees but that have not occurred as a result of such termination. Opsin shall have no obligation regarding Errors reported after the applicable Subscription/Order Term.
5.3 Exclusions. The express warranties do not apply if the applicable Solution (i) has been modified, except by Opsin or by Customer or a third party at Opsin’s written direction, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due solely to a failure to use an applicable Update, (iv) due to causes that are external to the Opsin Solution or otherwise beyond Opsin’s reasonable control, including, without limitation, natural disasters, fire, smoke, water, earthquakes, lightening, electrical power fluctuations or failures, or hardware or software not provided by Opsin. If any part of a Solution references websites, hypertext links, network addresses, or other third-party locations, information, or activities, such information is provided as a convenience only.
5.4 No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT OPSIN DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, EXTRACT OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, OR MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD OPSIN RESPONSIBLE THEREFOR. CUSTOMER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT INCIDENT DATA WHICH THE SOLUTIONS PROVIDE AND/OR ATTRIBUTIONS WHICH THE SOLUTIONS MAKE, MAY BE UNRELIABLE AND INCOMPLETE; THEREFORE, ALL INCIDENT DATA AND ATTRIBUTED DATA IS PROVIDED AS IS AND WITHOUT GUARANTEE OF COMPLETENESS OR CORRECTNESS, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD OPSIN RESPONSIBLE THEREFOR.
5.5 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 5, OPSIN AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OPSIN AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOLUTIONS. EXCEPT AS PROVIDED IN THIS SECTION 5, THERE IS NO WARRANTY THAT THE SOLUTIONS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE SOLUTIONS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER ARE THE SOLUTIONS FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. CUSTOMER AGREES THAT IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE SAFE USE OF A SOLUTION IN ANY INSTALLATIONS. OPSIN DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.
6.1 Opsin’s Obligation. Opsin will (i) defend its Customer against any claim asserted in a legal proceeding by a third party alleging that an Opsin Solution infringes a third party’s registered copyrights, misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or infringes such third party’s valid U.S. patent(s) issued as of the Effective Date (a “Claim”) and (ii) subject to Section 6.3, pay any damages finally awarded against Customer for such Claim by a court of competent jurisdiction, or any amount agreed to by Opsin in settlement of such Claim; provided that Customer promptly notifies Opsin of any such Claim in writing (a delay in providing notice does not excuse these obligations unless Opsin is prejudiced by such delay), Opsin is given sole and exclusive control over the defense and settlement of such Claim (however, Opsin will not settle any Claim in a manner that requires Customer to admit fault or attributes liability to Customer without Customer’s prior written consent), and Customer provides all information and cooperation requested by Opsin, at Opsin’s expense, in connection with the defense and settlement of such Claim.
6.2 Remedies. If any portion of an Opsin Solution becomes, or in Opsin’s opinion is likely to become, the subject of a Claim, Opsin may, at its option, (i) procure for Customer the right to continue using the Solution, (ii) replace or modify the Solution to make it non-infringing or reduce the likelihood of infringement, such that the replacement or modification provides substantially the functionality of the Solution that is replaced or modified, or (iii) terminate this Agreement by providing Customer written notice thereof; provided, however, that if Opsin exercises such termination right, Opsin will refund to Customer a pro-rata portion of the Fees paid by Customer for the Solution subject to such Claim (with such pro-ration based on the number of days remaining in the Subscription/Order Term had Opsin not so terminated this Agreement).
6.3 Exclusions. Opsin shall have no obligations under this Section to the extent the claim is based upon or directly arises out of: (i) any modification to the applicable Solution not made by Opsin or at the written direction of Opsin; (ii) any combination or use of the applicable Solution with or in any third-party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use and would have been avoided but for such combination or use; (iii) Customer’s continued use of the allegedly infringing Solution after being notified by Opsin to cease usage of the allegedly infringing Solution due to the infringement claim or after being provided a modified version of the Solution by Opsin at no additional cost that is intended to address such alleged infringement, (iv) Customer’s failure to use the Solution in accordance with the applicable Documentation;
(v) Customer’s use of the Solution outside the scope of the rights granted under this Agreement or a signed SOW; and/or (vi) any modification to or use of the Solution which is based upon Customer Data or other material provided by Customer to Opsin, to the extent that such claim is based upon such Customer Data or other material .
6.4 Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND OPSIN’S ENTIRE LIABILITY, WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OF THAT THIRD PARTY’S INTELLECTUAL PROPERTY.
7.1 Exclusions to Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE.
7.2 Sublimit on Monetary Damages. EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE UNDER SECTION 6 (INDEMNIFICATION); CUSTOMER’S PAYMENT OBLIGATIONS; DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF OPSIN’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE RELEVANT SOLUTION, DURING THAT SOLUTION’S 12 MONTH SUBSCRIPTION TERM THAT GAVE RISE TO THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT.
7.3 Total Aggregate Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.2, IN NO EVENT WILL OPSIN’S AGGREGATE, CUMULATIVE, TOTAL LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM, LOSS OR DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE MILLION DOLLARS, ($1,000,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF TWO OR MORE CLAIMS, LOSSES, DAMAGES OR SUITS WILL NOT ENLARGE THE LIMIT IN THIS SECTION 7.3.
7.4 Acknowledgment. THE PARTIES ACKNOWLEDGE THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY AND THE WARRANTY DISCLAIMERS CONTAINED HEREIN.
Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption, employment and if applicable, the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, the UK GDPR, or similar privacy laws in any relevant jurisdiction. Customer acknowledges and agrees the Solutions shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. Opsin represents and warrants that Opsin is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
8.1 Anti-Bribery. In connection with its obligations under this Agreement, Opsin shall comply with all anti-bribery laws and regulations applicable to Opsin.
This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein.
9.1 Upon delivery of reasonable notice based upon the risk of the situation, Opsin may immediately suspend Customer’s access to, or use of, the Solutions if Opsin reasonably believes that there is a significant threat to the security, integrity, functionality, or availability of the Solutions or any content, data, or applications in the Solutions.
9.2 Any party (“Non-defaulting Party”) may terminate this Agreement by delivering written notice of a material breach, with a 30- day cure period, to the other party (“Defaulting Party”), unless the breach is cured within the 30-day cure period. Prior to termination and subject to the terms of this Agreement, Customer shall have the right to access and download Customer Data available per the Customer’s purchased Solution and data retention period in a manner and in a format supported by the Solution.
9.3 This Agreement may also be terminated forthwith by any Non-defaulting Party by giving notice in writing to the Defaulting Party if at any time the Defaulting Party shall become insolvent or shall go into dissolution or into liquidation (except for a voluntary liquidation for the purposes of reconstruction or amalgamation upon terms previously approved in writing by the Non-defaulting Party) or a receiver or examiner is appointed to the Defaulting Party or upon the happening of a like event whether at the direction of an appropriate regulatory agency or a court of competent jurisdiction or otherwise the Defaulting Party breaches any laws or regulations or becomes subject to a lawsuit, regulatory action, government investigation, allegation, demand, claim, request, inquiry, sanction, arbitration or proceeding that, in each case the Non-defaulting Party reasonably determines could cause the Non-defaulting Party reputational harm.
9.4 Upon termination of this Agreement for any reason: (a) all Customer’s access and use rights granted in this Agreement will terminate; (b) Customer must promptly cease all use of Solutions and de-install any related Software installed on Customer’s systems; and (c) save as otherwise provided in an Addendum, Customer Data will be deleted in accordance with the data retention period specified on the Order or in the Documentation and Section 4.4 (Destruction). Sections 1, 4, 6, 7, 9, 10 shall survive expiration or termination of this Agreement for any reason.
10.1 Entire Agreement. This Agreement (together with all addendums, Orders and exhibits) constitutes the entire agreement between Customer and Opsin concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter; provided, however, that if Customer and Opsin have entered into a separate written agreement signed by both parties that governs Customer’s use of the Solution, that signed agreement will govern and will not be superseded, amended, or otherwise modified by any acceptance of this Agreement by clicking, checking a box, or other electronic means. It is expressly agreed that, subject to the foregoing proviso, the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-Opsin document and no such terms included in any such portal or other non-Opsin document shall apply to the Agreement or Solutions ordered. Opsin’s obligations and liabilities to Customer for Orders through a Reseller are subject to, and are governed by, this Agreement. Opsin is not obligated under any Reseller's agreement with Customer unless an authorized signer of Opsin executes such agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party’s legal representative drafted any of its provisions.
10.2 Authority. Each party represents and warrants that the individual accepting or executing this Agreement on its behalf has full legal capacity, authority and power to enter into the Agreement on behalf of such party, and to bind such party to the terms and conditions herein.
10.3 Assignment. Neither Party may assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Opsin may assign this Agreement without prior consent in the event of a merger, acquisition, or sale of substantially all Opsin’s assets, provided the assignee agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and permitted assigns.
10.4 Governing Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, excluding its conflicts-of-law principles. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Venue and Jurisdiction is proper in any Court of competent subject matter jurisdiction located in Wilmington, Delaware, and each party consents to personal jurisdiction therein. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights.
10.5 Independent Contractors; No Third-Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
10.6 Waiver, Severability & Amendments. The waiver by either party of a breach or default by the other party of any provision of this Agreement will not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible in order to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties; provided, however, that Opsin may update these Terms from time to time by posting a revised version at https://www.opsinsecurity.com/opsin-end-user-license-agreement (or any successor URL) and updating the “Last Updated” date. Updated Terms will apply only to Orders, renewals, and Evaluations that begin after the posting date, and will not apply to any then-current Subscription/Order Term without Customer’s written consent. Updated Terms will not amend any signed agreement described in Section 10.1.
10.7 Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, epidemic, pandemic, quarantine, or any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the control of the party and which could not have been prevented with reasonable care. The party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other party.
10.8 Order of Precedence. In the event of any conflict of terms between this Agreement, an Addendum, and the applicable Order, unless otherwise expressly provided herein (including in Sections 2.4 and 10.1), the order of precedence will be the following: (a) the applicable Order, provided it is signed by Opsin, (b) an Addendum (including Exhibit A), (c) this Agreement.
10.9 Notices. All legal notices will be given in writing to Opsin at the address below and to Customer at the address set forth in the applicable Order (or, if none, the email address associated with Customer’s account) and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures. Notices to Opsin should be directed to:
Opsin, Inc.
Attn: CEO
333 West San Carlos Street STE 600
San Jose, CA 95110
with a copy to support@opsinsecurity.com
The provisions of this Data Processing Addendum shall apply to all Processing of Personal Data in connection with the performance of the Opsin End User License Agreement and each Order thereunder (the "Agreement") and forms an integral part thereof, whereby Opsin, Inc. acts as a Data Processor on behalf of you as the Customer, which, for purposes of this Addendum, acts as a Data Controller.
All capitalized terms shall have the meaning ascribed to them in the Agreement, unless expressly provided otherwise in this Addendum. This Addendum supersedes any conflicting provision of the Agreement related to the Processing of Personal Data.
The Customer and the Company hereby agree as follows:
"Applicable Data Protection Laws" means applicable privacy and data protection laws in connection with the processing of personal data conducted pursuant to the Agreement, including without limitation (to the extent applicable), (a) GDPR, (b) Israel Privacy Protection Law, 5741-1981, and the regulations promulgated thereunder, and (c) guidance issued by any relevant supervisory authority or implementing, amending, or supplementing the above laws, rules and regulations, whether in effect now or in the future.
“Company” shall be Opsin, Inc., acting as the data processor
"Customer" as used in this Data Processing Addendum shall mean collectively, the Customer party that enters into the Agreement and its affiliates.
"Data Subject Requests" means any requests from a Data Subject related to access, rectification, suppression, limitation, objection, portability and erasure of Personal Data or other requests authorized under Applicable Data Protection Law.
"GDPR" means EU General Data Protection Regulation 2016/679;
"Personnel" means Company or Customer's employees, contractors, subcontractors, agents and representatives.
"Processed Data" or "Customer Personal Data" means any Personal Data Processed by the Company on behalf of the Customer pursuant to or in connection with the Agreement;
"Security Event" means any attempt or activity that (i) is made to gain unauthorized access to Processed Data; (ii) interferes with the operation of any Company Systems or Customer Systems containing the Company or the Company third-party data or information; or (iii) may otherwise compromise the security or privacy of the Processed Data or its disclosure.
The terms “Controller”, "Data Subject", "Personal Data", "Personal Data Breach", "Processing", “Processor” and "Supervisory Authority" shall have the same meaning as in the Applicable Data Protection Laws.
Each party shall comply at all times with Applicable Data Protection Laws and shall promptly notify the other party of any circumstance of which it is or becomes aware that may prevent either party from complying with its obligations under this Addendum or Applicable Data Protection Laws or that may otherwise adversely impact the Processing of Personal Data hereunder.
Each party shall reasonably cooperate with the other in responding to inquiries, incidents, claims, and complaints regarding the Processing of the Personal Data or as otherwise needed for either party to demonstrate compliance with the Applicable Data Protection Laws applicable to it.
In addition to the other obligations set forth hereunder, each of Customer and Company shall:
- comply with its respective obligations under Applicable Data Protection Laws in relation to all Customer Personal Data that may be processed in the performance and operation of this Addendum;
- ensure that the processing operations to be carried out in the performance of this Addendum conform to the description set out under "Details of Processing" hereunder;
- process the Customer Personal Data solely on the documented instructions of Customer, in order to supply the Solution and related Services and as otherwise necessary to perform its obligations under the Agreement including with regard to transfers of Customer Personal Data to a country outside its current location;
- not Process Customer Personal Data in any country outside the United States, Israel, the UK or the EEA without the prior written consent of Customer; and
- immediately inform the other party if, in its opinion, an instruction pursuant to the Agreement violates Applicable Data Protection Laws.
The Customer shall be responsible to obtain all the necessary prior consents or authorization of the data subjects.
The Company shall provide reasonable assistance to the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising the Data Subject's Requests. The Company shall not be liable in respect of any claim regarding Data Subject rights.
The Company shall promptly notify the Customer's designated contact if it receives a request from a Data Subject under any Applicable Data Protection Law in respect of the Processed Data; and ensure it responds to that request as required by Applicable Data Protection Laws.
The Company shall notify the Customer without undue delay upon becoming aware of a Personal Data Breach or a Security Event affecting the Processed Data. The Company shall not be liable in respect of any claim of Personal Data Breach or a Security Event.
Unless otherwise mandated by Applicable Data Protection Laws, the Customer shall instruct the Company whether to report or inform Data Subjects of the Personal Data Breach, pursuant to the requirements under Applicable Data Protection Laws.
The Company shall take reasonable commercial steps in the investigation, mitigation and remediation of each such Personal Data Breach or a Security Event.
Customer shall ensure that its Personnel authorized to Process the Customer Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Both parties will disclose the Processed Data only to those Personnel who have the need to know such Processed Data in connection with the performance of the Agreement.
Customer hereby grants to the Company a general written authorization to use sub-processors for the provision of the Solution, provided that:
- the Company shall ensure that it engages such sub-processors by written agreement that imposes data protection obligations no less protective than those set forth in this Addendum;
- the sub-processor complies with its obligations under the Applicable Data Protection Laws relating to any Customer Personal Data and has sufficient organizational and technical measures in place to guarantee the protection of Customer Personal Data against unauthorized or unlawful processing; and
- the Company will notify the Customer of any intended changes concerning the addition or replacement of a sub-processor thereby giving the Customer the opportunity to object to the addition or replacement within fourteen (14) days of the notification.
Customer shall ensure the security of the Customer Personal Data that it processes in accordance with the requirements of Applicable Data Protection Law.
Both parties shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
Both parties shall use best efforts to ensure (i) that any Processed Data that is inaccurate or incomplete is erased or rectified; (ii) establish an audit trail to document whether and by whom Processed Data have been entered into, modified in, or removed; and (iii) retain the Processed Data only as long as is necessary.
In connection with its processing of Customer Personal Data, the Company shall, during the term of the Agreement, provide the Customer with information reasonably necessary to demonstrate compliance with the obligations laid down in the Applicable Data Protection Laws, and shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer, provided that:
The Customer gives at least thirty (30) days' prior written notice to conduct such audit or inspection;
the auditor is subject to binding obligations of confidentiality; and
the audit or inspection is undertaken so as to cause minimal disruption to the Company's business and other customers. The provisions of this Data Processing Addendum shall survive termination or expiration of the Agreement.
Details of the Processing of the Personal Data (as required by Article 28(3) GDPR):
Subject matter and duration of the processing of the Personal Data: shall be as set forth in the Agreement, according to the scope of the Solution and the Subscription/Order Term, as each is defined in the Agreement.
The nature and purpose of the processing of the Personal Data:
For the Company to perform its obligations pursuant to the terms and conditions;
For delivery and provision of the Solution to the Customer;
For customer support and technical troubleshooting;
To comply with applicable law, including law enforcement requests.
The types of the Personal Data to be processed: name, phone number, email address, position, transactions, usage details, including URLs visited, events triggered on defined actions such as page loads, clicks, logins and purchases, IP addresses, cookies, analytics data.
The categories of Data Subject to whom the Personal Data relates: current employees of the Customer and other authorized users of the Solution.